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United States v. Atkins

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

July 23, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
JEFFERY ATKINS DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.[1] The Government filed its response on July 17, 2018. (ECF No. 98). The matter is ready for Report and Recommendation.

         I. Background

         On December 9, 2015, Defendant, Jeffery Atkins (“Atkins”), was named in an Indictment charging him with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count One), and with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Two). (ECF No. 1). Atkins was arrested on January 8, 2016 (ECF No. 16), and he appeared before the Honorable Erin L. Setser[2], U.S. Magistrate Judge, for arraignment on January 11, 2016, at which time Atkins entered a not guilty plea to the Indictment. (ECF No. 7). Mr. Jack Schisler (“AFPD Schisler”), an Assistant Federal Public Defender, was appointed to represent Atkins. (ECF Nos. 7, 9).

         A Superseding Indictment was filed on March 16, 2016, and a third count was added charging Atkins with carrying and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). (ECF No. 30). Atkins was arraigned on the Superseding Indictment on March 18, 2016, and he entered a not guilty plea. (ECF No. 33).

         On March 29, 2016, attorney Jack Kearney (“Mr. Kearney”) filed a Motion to Substitute Attorney of Record on behalf of Atkins, and AFPD Schisler filed a Motion to Withdraw as Attorney. (ECF Nos. 38, 40). A Text Only Order granting AFPD Schisler's motion was entered on the same date, and a separate Text Only Order granting Mr. Kearney's motion was entered on March 30, 2016.

         On July 8, 2016, Atkins appeared before the Honorable Timothy L. Brooks, U.S. District Judge, for a change of plea hearing. (ECF No. 54). A written plea agreement was presented to the Court, and Atkins pleaded guilty to Counts Two and Three of the Superseding Indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). (ECF Nos. 54, 55). The Court determined that Atkins' guilty pleas were voluntary; that there was a factual basis for Atkins' pleas; and, his guilty pleas were accepted. (ECF No. 54). The Court expressed tentative approval of Atkins' plea agreement pending completion of a Presentence Investigation Report (“PSR”). (Id.).

         An initial PSR was prepared by the United States Probation Office on September 20, 2016. (ECF No. 58). On October 25, 2016, Atkins advised that he had no objections to the PSR which directly affected the sentencing guidelines. (ECF No. 66). On October 19, 2016, the Government advised that it had no objections to the PSR that would impact the advisory guideline range. (ECF No. 63).

         On October 25, 2016, a final PSR was submitted to the Court. (ECF No. 64). Regarding Count Two, felon in possession of a firearm, the final PSR reported a base offense level of 20. (ECF No. 64, ¶ 35). No. specific offense characteristics, victim related, role in the offense, obstruction of justice, or Chapter Four enhancement adjustments were made. (ECF No. 64, ¶¶ 36-41). After a three-level reduction for acceptance of responsibility was made, Atkins' total offense level for Count Two was determined to be 17. (ECF No. 64, ¶¶ 42-44). Regarding Count Three, possession of a firearm in furtherance of a drug trafficking crime, the final PSR reported that the guideline sentence is the minimum term of imprisonment required by statute; that pursuant to 18 U.S.C. § 924(c)(1)(A), the minimum term of imprisonment is five years; therefore, the guideline range is five years. (ECF No. 64, ¶ 45).

         Atkins' criminal history resulted in a criminal history score of four, placing him in criminal history category III. (ECF No. 64, ¶ 53). The maximum term of imprisonment on Count Two is 10 years. (ECF No. 64, ¶ 83). The minimum term of imprisonment on Count Three is five years, and the maximum term is life. (Id.). Based upon a total offense level of 17 and a criminal history category of III, Atkins' advisory guideline range for Count Two was determined to be 30 to 37 months imprisonment, while the minimum term of imprisonment on Count Three is 60 months and shall be imposed to run consecutively to any other term of imprisonment. (ECF No. 64, ¶ 84).

         Atkins appeared for sentencing on December 6, 2016. (ECF No. 75). The Court granted the Government's motion for a two-level downward departure on Count Two, and Atkins was sentenced to a term of 14 months imprisonment on Count Two. (Id.). Atkins was sentenced to a term of 60 months imprisonment on Count Three, to run consecutively to Count Two. (Id.). Three years supervised release was imposed on each count, to run concurrently; a fine of $3, 400 was imposed, with interest waived; and, $200.00 in special assessments were assessed. (Id.). Judgment was entered on December 9, 2016. (ECF No. 77). Atkins did not pursue a direct appeal.

         On April 30, 2018, Atkins filed his pending motion in this Court. (ECF No. 93). The motion raises one ground for relief: that his conviction and sentence under 18 U.S.C. § 924(c) is unconstitutional pursuant to Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). (Id.). As his initial motion was not on the standard form for a motion under 28 U.S.C. § 2255, Atkins was directed to complete a standard form motion (AO 243). (ECF No. 95). He did so and filed it on July 2, 2018. (ECF No. 96). The United States filed its response on July 17, 2018. (ECF No. 98).

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear ...


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