United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
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. The Government filed its response on
July 17, 2018. (ECF No. 98). The matter is ready for Report
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, 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).
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).
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.
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”).
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).
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).
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).
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.
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).
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 ...