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United States v. Morine

United States District Court, W.D. Arkansas, Texarkana Division

March 13, 2018

UNITED STATES OF AMERICA RESPONDENT
v.
ANTHONY MORINE MOVANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE.

         Movant is Anthony Morine (“Morine”) who is proceeding pro se. On April 6, 2017, Morine filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. ECF No. 32. After being directed by the Court to respond, the Government filed a response to this Motion. ECF No. 40.

         The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The Court has reviewed the Motion and the response; and based upon that review, the Court recommends this Motion be DENIED.

         1. Procedural Background:[1]

         On March 7, 2012, Morine was named in a one-count Indictment filed in the Western District of Arkansas, charging him with distributing more than 28 grams of cocaine base within 1000 feet of the real property of a public housing facility, in violation of Title 22 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) and 860(a). ECF No. 1.

         On August 31, 2012, Morine appeared with counsel before the Honorable Susan O. Hickey for a change of plea hearing. ECF No. 16. A written plea agreement was presented to the Court that set forth the terms of Morine's agreement to plead guilty to the Indictment. ECF No. 17. Morine's Plea Agreement contained a Waiver of Appellate and Post-Conviction Rights. ECF No. 17 ¶ 6. The Court accepted Morine's plea and ordered a Presentence Investigation Report (“PSR”).

         Subsequently, the Probation Office issued Morine's final PSR. The PSR found Morine to be a Career Offender under the provisions of the United States Sentencing Guidelines § 4B1.1, resulting in a Total Offense Level of 31, following a three-level reduction for acceptance of responsibility. PSR ¶¶ 21-24. Morine's criminal history score was determined to be 10, which would normally result in a criminal history category of V. PSR ¶¶ 56-58. However, because Morine is a Career Offender, his criminal history category became VI. PSR ¶ 59. Morine's statutory sentencing range called for a minimum term of imprisonment of 5 years and a maximum term of 80 years. PSR ¶ 100. Morine's Total Offense Level of 31 and Criminal History category of VI combined to produce an advisory guideline range of 188 to 235 months imprisonment. PSR ¶ 101.

         On January 23, 2013, Morine appeared before the Honorable Susan O. Hickey for sentencing. ECF No. 24. At the conclusion of the hearing, the Court sentenced Morine to 120 months imprisonment, with credit for time served in federal custody, 8 years supervised release, and a $100 special assessment. ECF No. 25. The judgment was entered on January 24, 2013. Id. Morine waived his right to directly appeal his conviction and sentence as a part of the Plea Agreement. ECF No. 17 ¶ 6. Therefore, no direct appeal was filed.

         Morine did subsequently file two motions for reduction of sentence. The first was filed on February 19, 2015 (ECF No. 27) and the second filed on June 8, 2015 (ECF No. 28). He acknowledged in the second motion that he was not entitled to relief as requested in the first motion for reduction of sentence. The Court denied both of these motions on June 15, 2015. ECF No. 30-31.

         On April 7, 2017, Morine filed the instant pro se Motion under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence, along with a memorandum brief in support thereof. ECF Nos. 32-33. At the same time, Morine also filed a Motion for an Evidentiary Hearing. The Court directed the United States to file a response to the Motion to Vacate, Set Aside, or Correct Sentence. ECF No. 36. The Government responded (ECF No. 40), and this Motion is ripe for consideration.

         2. Applicable Law:

         A § 2255 motion is fundamentally different from a direct appeal. The Court will not reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) (“Claims which were raised and decided on direct appeal cannot be re-litigated on a motion to vacate pursuant to 28 U.S.C. § 2255 .”).

         “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         3. ...


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