United States v. Golden

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         The 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.

         1. Background: ^[1]

         On 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 firearm. Id.

         On 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. Marshals Service.

         On 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 defendant.” Id.

         United 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.

         On May 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, ¶ 113-114.

         On 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.

         Golden 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.

         On May 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.

         2. Instant Motion:

         In this 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 ...