United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 filed pro
se by Michael Shane Golden (“Golden”), an
inmate confined at the Texarkana Federal Correctional
Institution in Texarkana, Texas.
Motion was referred for findings of fact, conclusions of law,
and recommendations for the disposition of the case. The
United States of America (hereinafter referred to as the
“Government”) has responded to the Motion. ECF
No. 53. The Court has considered the entire record, and this
matter is ready for decision. For the reasons stated below,
the Court recommends the Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No.
48) be DENIED.
October 5, 2016, Golden was indicted on four counts by the
grand jury in the Western District of Arkansas. ECF No. 1.
Counts One, Two, and Three charged Golden with knowingly and
intentionally distributing a controlled substance, namely, a
mixture or substance that contained methamphetamine. Count
Four charged Golden with being a felon in possession of a
October 24, 2016, Golden was arraigned before the
undersigned. ECF No. 12. The Court appointed Federal Public
Defender, Bruce Eddy, to represent Golden. Id.
Golden entered a not guilty plea, waived the issue of
detention, and was remanded to the custody of the U.S.
January 13, 2017, Golden appeared with counsel Bruce Eddy and
entered a plea of guilty to Count 4 of the Indictment. ECF
No. 18. On the same day, Golden and the Government submitted
a Plea Agreement to the Court. ECF No. 19. Golden, and his
counsel, signed the Plea Agreement where in exchange for the
Government's concessions in the Plea Agreement, Golden
waived any right to appeal or to collaterally attack his
conviction and sentence, except for claims based on
ineffective assistance of counsel or prosecutorial
misconduct. Id. Further, Golden made the following
representations in the Plea Agreement:
“By signing this plea agreement, the defendant
acknowledges that: a. The defendant has read this agreement
and carefully reviewed every part of it with defense counsel.
b. The defendant fully understands this plea agreement and is
not under the influence of anything that could impede the
defendant's ability to fully understand this plea
agreement. c. No. promises, agreements, understandings, or
conditions have been made or entered into in connection with
the decision to plead guilty except those set forth in this
plea agreement. d. The defendant is satisfied with the legal
services provided by defense counsel in connection with this
plea agreement and matters related to it. e. The defendant
has entered into this plea agreement freely, voluntarily, and
without reservation and the defendant's desire to enter a
plea of guilty is not the result of threats or coercion
directed at the defendant or anyone connected with the
States District Judge Susan O. Hickey accepted his plea of
guilty and directed the United States Probation Office to
prepare a Pre-Sentence Report (PSR) pursuant to the United
States Sentencing Guidelines (USSG). ECF No. 18.
22, 2017, the Probation Office filed Golden's final PSR.
ECF No. 25. The PSR assessed a base offense level of 20 for
Count Four pursuant to USSG § 2K2.1(a)(4)(A) as Golden
had previously been convicted for a felony controlled
substance offense. ECF No. 25, ¶ 28. Because Golden
possessed a firearm in connection with another felony
offense, his base offense level was increased by four. ECF
No. 25, ¶ 29. After receiving a 3-point reduction for
acceptance of responsibility, Golden's offense level was
found to be 21. ECF No. 25, ¶ 35-37. Golden had a
criminal history score of 7, but because he was on parole
while he committed the instant offense, 2-points were added
to his criminal history score, which placed him in category
IV. ECF No. 25, ¶ 77-79. Golden faced a statutory
maximum term of 10 years and his resulting USSG advisory
guideline was 57 months to 71 months. ECF No. 25, ¶
September 7, 2017, Golden appeared before Judge Hickey for
sentencing. ECF No. 28. At sentencing, Judge Hickey sentenced
Golden to 66 months in the Bureau of Prisons with credit for
time served in federal custody, three years of supervised
release, and a special assessment of $100.00. Id.
filed a timely notice of appeal on September 22, 2017. ECF
No. 32. On appeal, Golden challenged his sentence and claimed
ineffective assistance of counsel. See United States v.
Golden, 731 Fed.Appx. 568 (8th Cir.2018). The Eighth
Circuit concluded he waived the right to challenge the
substantive and procedural reasonableness of his sentence and
declined to consider his ineffective assistance of counsel
claim. Id. at 569.
14, 2018, while his appeal was pending, Golden filed a motion
to vacate under 28 U.S.C. § 2255. ECF No. 43. The Court
denied Golden's motion as being premature and dismissed
the motion without prejudice. ECF No. 46. On August 27, 2018,
after his appeal had been dismissed, Golden filed the current
§ 2255 motion. ECF No. 48.
Motion, Golden raises three issues:
A. Ineffective assistance of counsel because his trial
counsel lead him to believe he would receive a 57 month
sentence; B. Ineffective assistance of counsel because his
trial counsel assured him he would receive credit for time
served; and C. His sentence is invalid because Sessions
v. Dimaya, 138 ...