The opinion of the court was delivered by: James M. Moody United States District Judge
Pending is petitioner's Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. § 2255 and the government's response. Petitioner contends that his sentence should be set aside based upon ineffective assistance of counsel on appeal and because the law changed before his sentence became final.
For the reasons stated below, the motion is granted (#113).
The facts relevant to this appeal are as follows. Petitioner pleaded guilty to one count of being a felon in possession of a firearm. Pursuant to his plea agreement, the government dismissed two other charges related to firearms.
At sentencing petitioner objected to the following as being classified as violent felonies under 18 U.S.C. § 924(e) or crimes of violence under U.S.S.G. § 4B1.1: a 1994 guilty plea in Georgia to possession of tools for the commission of a crime; a 1994 guilty plea to burglary in Illinois; a 1995 guilty plea in Georgia to entering an automobile to commit theft; and a 1995 aggravated assault conviction in Georgia.*fn1 Petitioner did not object to a 1995 guilty plea to automobile theft in Georgia being counted as a violent crime.
Petitioner testified at his sentencing hearing that the 1994 Georgia guilty plea to possession of tools for the commission of a crime did not involve a burglary, rather he pleaded guilty to having a flashlight, a screwdriver, and a pair of lock cutters. He testified that the 1994 Illinois burglary conviction resulted from his pleading guilty to breaking into a truck which was unoccupied and unlocked. Petitioner testified that the 1995 Georgia conviction for entering an automobile to commit theft consisted of his breaking into an unoccupied car and removing some property. Finally petitioner testified that the 1995 Georgia aggravated assault consisted of him threatening to shoot someone with a BB gun.
In calculating petitioner's sentence under the Sentencing Guidelines and under Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), the Court counted three prior state convictions as violent crimes: the 1994 Illinois conviction for burglary, the 1995 Georgia conviction for entering an automobile to commit theft, and the1995 Georgia conviction for automobile theft. The1994 Georgia guilty plea to possession of tools was not counted as a violent crime, but petitioner was assessed three criminal history points under U.S.S.G. § 4A1.1.
Inclusion of these convictions qualified petitioner as a career offender under U.S.S.G. § 4B1.1 of the Guidelines which automatically placed him in a criminal history category of VI*fn2 and brought about application of the § 924(e) which set a mandatory minimum sentence of 15 years.
The pre-sentence report reflected that pursuant to U.S.S.G. § 2K2.1(a)(2) petitioner's base offense level was 24 based upon petitioner committing the instant offense after sustaining two convictions for crimes of violence. Petitioner received a four point enhancement pursuant to U.S.S.G. § 2K2.1(b)(1)(B) because the instant offense involved the transportation of eight firearms; a two level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) because the firearms involved in the instant offense were stolen; a four point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) because petitioner possessed the firearms in connection with another felony offense, specifically, home burglaries; and a two level enhancement pursuant to U.S.S.G. § 3C1.2 because defendant recklessly created a substantial risk of death or serious injury to another person in the course of fleeing from law enforcement officers when arrested for the instant offense.
Petitioner received a three level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 resulting in petitioner having a total offense level of 33. With a total offense level of 33 and criminal history category of VI, the Sentencing Guideline range was 235 to 293 months.
After making a downward departure, the Court sentenced petitioner to 200 months imprisonment, 5 years supervised release, and a $100.00 special assessment.
Petitioner filed a timely notice of appeal of his sentence to the United States Court of Appeals for the Eighth Circuit which affirmed the sentence of ...