United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Earl Evans, Jr., has filed a pro se motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255,
arguing that his lawyer was ineffective. On June 4, 2015,
Evans waived indictment and pleaded guilty to one count of
possession of stolen firearms in violation of 18 U.S.C.
§ 922(j) pursuant to a an 11(c)(1)(B) plea agreement.
The Court sentenced Evans to 120 months imprisonment and
three years supervised release, and ordered him to pay $152,
901.53 in restitution. For the following reasons, Evans's
motion is denied.
prevail on a claim of ineffective assistance of counsel, a
defendant must show that his lawyer's performance was
deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Proving
that counsel was deficient “requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id.
“Judicial scrutiny of counsel's performance must be
highly deferential.” Id. at 689, 104 S.Ct. at
2065. Because of the distorting effects of hindsight and the
difficulty of viewing counsel's representation of the
client from the perspective available to defense counsel at
the time of trial, “[a] court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. Proving that the deficient performance
prejudiced the defense requires showing that there is a
reasonable probability that, but for defense counsel's
mistakes, the result of the proceeding would have been
different. Id. at 694, 104 S.Ct. at 2068. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
“When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Id. at 695, 104 S.Ct. at
2068-69. In determining whether there is a reasonable
probability that but for counsel's mistakes the result
would have been different, the Court must consider the
totality of the evidence before the judge or the jury.
Id. The Strickland two-part standard also
applies to ineffective assistance claims arising out of the
plea process. Hill v. Lockhart, 474 U.S. 52, 57, 106
S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). When the claim of
ineffective assistance of counsel arises out of the plea
process, the prejudice element “focuses on whether
counsel's constitutionally ineffective performance
affected the outcome of the plea process.” Id.
An increased prison term may constitute prejudice under the
Strickland standard. Glover v. United
States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604
alleges that his lawyer “was ineffective for failure to
give him notice before sentencing for a gun offense that may
be enhanced as a result of prior convictions.” Document
#166 at 5. Evans does not explain precisely what he means by
that allegation, but presumably he is referring to paragraph
17 of the presentence report, which found that pursuant to
U.S.S.G. § 2K2.1 the base offense level for possession
of stolen firearms was 26. That determination was based on
the facts that the offense involved a semi-automatic firearm
that was capable of accepting a large capacity magazine and
Evans committed the offense subsequent to sustaining at least
two felony convictions of either a crime of violence or a
controlled substance offense.
to Evans's allegation in his section 2255 petition, the
record conclusively establishes that Evans knew before
sentencing that the prior convictions were used to enhance
his offense level. The Court asked Evans on the record
whether he had read the presentence report, and he said that
he had. The Court also asked Evans whether he was satisfied
with the work that his lawyer has done for him, and he said
that he was. His lawyer has submitted an affidavit in which
she states that she reviewed the presentence report with him.
She initially objected to the increase in the base offense
level because she believed that one of the convictions was
not a crime of violence, but after performing research, she
withdrew the objection. Based on this record, Evans cannot
establish that his lawyer failed to inform him before
sentencing that the base offense level would be enhanced due
to his prior convictions.
Evans show that he was prejudiced by the alleged failure to
inform him before sentencing that the base offense level was
then increased due to his prior convictions. Evans had a
considerable criminal history. He had 16 criminal history
points, which resulted in a criminal history category of VI.
He and others, acting together, participated in a series of
interstate carrier theft break-ins and thefts along
Interstate 55 and Interstate 40 in Eastern Arkansas. Evans
and his co-conspirators broke into more than eighty
tractor-trailers and stole various products. On the occasion
that gave rise to the present conviction, he and other
individuals broke into a tractor-trailer, stole 107 firearms,
and transported the firearms to Memphis, Tennessee, where
they sold them on the street. Based on these facts and
Evans's extensive criminal history, the appropriate
sentence under 18 U.S.C. § 3553 was ten years
imprisonment. Evans cannot show that he would have been
sentenced to a lesser term of imprisonment had he known
before sentencing that his sentence was being enhanced due to
the prior convictions, nor can he show that he would have
declined to enter a plea of guilty and gone to trial had he
known about the enhancement.
motion of Curtis Earl Evans to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 is DENIED. Document
#166. No certificate of appealability will be issued.
 Fed. R. Cr. P. 11(c)(1)(B).