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Nelson v. United States

United States District Court, D. Maine

April 25, 2018

DARRELL NELSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE.

         In this action, Petitioner Darrell Nelson moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 49.) In January 2017, following a guilty plea, Petitioner was convicted of distribution of heroin and cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C); the Court sentenced Petitioner to 108 months in prison, to be followed by three years of supervised release. (Judgment, ECF No. 41 at 1-3.) Petitioner did not appeal from the conviction or the sentence.

         Petitioner filed his section 2255 motion in September 2017.[1] (Motion at 1.) He contends he is entitled to relief because, he argues, one of the crimes on which his status as a career offender was based no longer qualifies as a predicate crime following the First Circuit's decision in United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017).

         Following a review of Petitioner's motion and the Government's request for dismissal, and after consideration of the parties' arguments, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         At sentencing, the Court found the facts as set forth in the revised presentence investigation report. (Sentencing Tr., ECF No. 48 at 24.) The Court found Petitioner was a career offender, based on “at least two prior felony convictions, ” pursuant to USSG § 4B1.1.[2] (Id.) The three predicate offenses identified in the revised presentence investigation report were: (1) a 2006 Massachusetts drug distribution offense for which Petitioner was sentenced to supervised probation of one year (¶ 27 of the report); (2) a 2009 Massachusetts offense involving possession to distribute for which Petitioner was sentenced to probation of one year (¶ 31 of the report); and (3) a 2010 Maine conviction for unlawful trafficking in scheduled drugs, for which Petitioner was sentenced to three years of imprisonment with all but six months suspended, followed by two years of probation (¶ 35 of the report).

         The Court determined the base offense level was 14, pursuant to USSG § 2D1.1(a)(5) and 2D1.1(c)(13). (Sentencing Tr. at 24.) Petitioner's career offender status raised the offense level to 32, pursuant to USSG § 4B1.1(b)(3).[3] (Id.) The Court reduced the offense level to 29 for Petitioner's acceptance of responsibility, pursuant to USSG § 3E1.1. (Id.) The Court found the guidelines range to be 151 to 188 months, based on a total offense level of 29 and a criminal history category of VI. (Id.) The Court noted that the criminal history category was VI regardless of whether it was based on Petitioner's criminal history points or his status as a career offender. (Id.) Petitioner did not object to the guidelines calculation. (Id. at 24-25.)

         The Court determined, in accordance with the recommendations of both parties, that the sentence should be below the low end of the guidelines range. (Id. at 25.) After considering the sentencing factors under 18 U.S.C. § 3553(a), the Court focused particularly on the need to protect the public, and imposed a sentence of 108 months of imprisonment, to be followed by three years of supervised release. (Id. at 28.)

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. The Supreme Court has noted that “‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998).

         In Damon v. United States, 732 F.3d 1, 3 (1st Cir. 2013), the First Circuit noted the standard applicable to section 2255 cases involving claims of guidelines error:

For non-constitutional, non-jurisdictional claims raised in a section 2255 petition, the Supreme Court has stated that “the appropriate inquiry [is] whether the claimed error of law [is] ‘a fundamental defect which inherently results in a complete miscarriage of justice, ' and whether ‘(i)t . . . present(s) exceptional circumstances ...

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