United States v. Garrison

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

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

         Movant is Samuel B. Garrison (“Garrison”) who is proceeding pro se. On January 22, 2019, Garrison filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. ECF No. 73. After being directed by the Court to respond, the Government filed a response to this Motion. ECF No. 77.

         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, Garrison was named in a four-count Indictment. ECF No. 1. On March 18, 2012, Garrison appeared for arraignment with counsel, Tonda Curry, and entered a plea of not guilty to Counts 1-4. ECF No. 8. Thereafter, on March 18, 2013, Garrison appeared with counsel, Clifton Holmes and Tonda Curry, before the Honorable U.S. District Judge Susan O. Hickey for a and pled guilty to Count 3 of the Indictment, aiding and abetting in distributing a mixture or substance containing a detectable amount of cocaine. ECF Nos. 25-26.

         On October 29, 2013, Garrison appeared with counsel, Gregory A. Waldron, for sentencing. ECF No. 41. After granting the Government's 5K1.1 motion for downward departure due to substantial assistance, Judge Hickey sentenced Garrison to 220 months in prison, 3 years of supervised release, and a $100 special assessment. ECF No. 44.

         On January 29, 2015, Garrison filed his first pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 48. This first motion was denied as untimely on December 16, 2016. ECF Nos. 57 and 68. Garrison did not appeal this denial.

         Garrison also filed two motions for reduction of sentence while the first § 2255 motion was pending. ECF Nos. 55 and 59. These motions for reduction of sentence were denied. ECF Nos. 61-62. He appealed the denial, and on September 15, 2015, the United States Court of Appeals for the Eighth Circuit summarily affirmed. ECF No. 67-1.

         2. Instant Motion:

         Garrison now files his second Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. ECF No. 73. He raises three (3) issues:

a. The First Step Act requires that he be resentenced;

b. The Court erred in sentencing by not making a finding of the drug quantity attributable to him; and

c. The Court erred by sentencing Garrison based on factors not found by a jury.

         The Court appointed counsel to represent Garrison on this second Motion and invited a supplement if needed. Appointed counsel responded and stated that no supplement would be beneficial to Garrison. ECF No. 76. The Government has responded to the Motion and asserts it is a successive motion filed without permission from the appropriate court of Appeals. ECF No. 77. Alternatively, the Government asserts Garrison is not entitled to relief on the substance of his first claim. Id. Further, the Government asserts Garrison is not entitled to assert the second and third claims because of his ...