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United States v. Schleper

United States District Court, D. Minnesota

June 13, 2017

United States of America, Plaintiff/Respondent,
v.
Gene Allen Schleper, Defendant/Petitioner.

          Kevin S. Ueland, Assistant U.S. Attorney, Counsel for Respondent.

          Gene Allen Schleper, pro se.

          MEMORANDUM OF LAW AND ORDER

          Michael J. Davis United States District Court

         I. Introduction

         This matter is before the Court on Petitioner's motions to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. [Doc. Nos. 36, 51 and 52].

         II. Background

         The Petitioner was charged in the Indictment with four counts: Count 1, Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1), 921(a)(3), 921(a)(4) and 924(e); Count 2, Possession of an Unregistered Firearm in violation of 26 U.S.C. §§ 5845, 5861 and 5871; Count 3, Illegal Manufacture of a Firearm in violation of 26 U.S.C. §§ 5822, 5845, 5861(f) and 5871; and Count 4, Possession of a Firearm with No Serial Number in violation of 26 U.S.C. §§ 5845, 5861(i) and 5871.

         On January 31, 2008, he entered into a Plea Agreement pursuant to Federal Rule of Criminal Procedure 11 (c)(1)(C) and pled guilty to Count 1 of the Indictment. As part of the Plea Agreement, the Petitioner admitted that had three prior convictions for a violent felony or serious drug offense and that he knowingly possessed a pipe bomb. The Petitioner agreed that his criminal history category was VI, and that he qualified as a career offender under the Sentencing Guidelines. The Petitioner further agreed that based on a total offense level 34, the applicable guideline range was 262 to 327 months imprisonment. The parties also agreed to provide the Court a sentence recommendation of 180 months and that if the Court sentenced him at or below 180 months, he waived his right to appeal or to contest, directly or collaterally, the sentence on any ground.

         The United States Probation Office prepared a Presentence Investigation Report (“PSR”) advising that at least three of the Petitioner's prior convictions were either a violent felony or serious drug offense: Second Degree Possession of Methamphetamine with Intent to Sell, Burglary and Second Degree Assault. The total offense level was calculated to be 34, and with a criminal history category of VI, the resulting guideline range was 262 to 327 months. In addition, the PSR noted the crime of conviction subjected the Petitioner to a fifteen year mandatory minimum term of imprisonment.

         On May 8, 2008, consistent with the parties' Rule 11 (c)(1)(C) Agreement, the Court sentenced the Petitioner to 180 months imprisonment.

         On January 27, 2016, the Petitioner filed this § 2255 motion to vacate, set aside or correct his sentence.

         III. Habeas Petition

         A. Standard for Relief under ...


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