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United States v. Myers

United States District Court, D. Minnesota

June 29, 2017

United States of America, Plaintiff-Respondent,
v.
Philip Alvin Myers, Defendant-Petitioner.

          Jeffrey S. Paulsen, on behalf of Plaintiff-Respondent

          Philip Alvin Myers, Pro Se Defendant-Petitioner

          ORDER

          SUSAN RICHARD NELSON, District Judge

         This matter is before the undersigned United States District Judge on four motions filed by Defendant-Petitioner Philip Alvin Myers: (1) Pro Se Motion to Vacate Pursuant to 28 U.S.C. § 2255 [Doc. No. 76]; (2) Pro Se Amended Motion to Vacate Pursuant to 28 U.S.C. § 2255 [Doc. No. 78]; (3) Pro Se Motion for Order of Default [Doc. No. 80]; and (3) Pro Se Motion to Supplement in Opposition to Government's Response [Doc. No. 82]. For the reasons set forth below, Myers' motions are denied and denied as moot.

         I. BACKGROUND

         In January 2011, the Government charged Myers with the following crimes: (1) interference with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951; (2) possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The Indictment alleged that on or about January 5, 2011, Myers, a convicted felon, robbed a gas station employee of $100 in cash from the cash register till and $70 in cash from the employee's wallet, while displaying a handgun. (Indictment, Counts 1-3 [Doc. No. 1].) Also, the Indictment called for the forfeiture of any handguns used in the alleged violations, including a Sig Sauer P229 .40 Caliber semiautomatic handgun, serial number AF11775. (Id. at p.3.)

         In the proceedings before this Court, Defendant was represented by appointed counsel, United States Federal Defender Reynaldo A. Aligada. On March 21, 2011, Mr. Aligada filed a motion for a psychiatric exam to determine Myer's competency, [Doc. No. 22], on his client's behalf. This Court determined that Myers was unable to understand the nature and consequences of the proceedings against him and committed him to the custody of the Attorney General for hospitalization and treatment. (Order of 7/26/11 [Doc. No. 28].) This commitment was continued until Myers' competency was adequately restored, after which, in January 2015, proceedings in this action resumed. (See 1/14/15 Status Conf. Minutes [Doc. No. 38].)

         In April 2015, Myers entered a change of plea [Doc. No. 45], agreeing to the factual basis of the underlying charges. Specifically, he agreed that he had robbed a gas station employee at gunpoint and fled in a stolen vehicle, which he later abandoned following a high speed chase. (See Govt's Sentencing Position at 2 [Doc. No. 55].) He was apprehended with the money in a backpack that he was carrying and officers recovered the handgun near the stolen vehicle. (See Gov't's Mot. for Prelim. Forfeiture at 2-3 [Doc. No. 47].) In addition, as part of the parties' plea agreement, Myers and counsel for the Government agreed that the Government would move for the dismissal of Counts 2 and 3 at the time of sentencing. (See Gov't's Sentencing Position at 1.) In exchange, and in light of the parties' conclusion that Myers was a career offender under the Sentencing Guidelines in light of two prior second degree burglary convictions, he agreed to no downward departure or downward variance from the applicable Sentencing Guidelines range of 151 to 188 months. (See id.; Def.'s Supp'l Sentencing Position at 1 [Doc. No. 64].) Myers further agreed to forfeit all right, title, and interest in the firearm recovered by law enforcement upon his arrest. (See Gov't's Mot. for Prelim. Forfeiture at 2.)

         Prior to Defendant-Petitioner's scheduled sentencing, the United States Sentencing Commission announced an upcoming change to U.S.S.G. § 4B1.2, Guideline Amendment 798, effective August 1, 2016, that would eliminate burglary as a “crime of violence” offense under the career offender guidelines. (Def.'s Supp'l Sentencing Position at 2.) This was the only type of career offender predicate offense in Myers' criminal history. (Id.) In light of the upcoming change, Mr. Aligada conferred with the Government's counsel, who agreed that a sentence outside of the 151 to 188 month range was appropriate. (Id. at 2-3.) The parties jointly recommended a sentence of 144 months. (Id. at 3.)

         On April 13, 2016, this Court sentenced Defendant-Petitioner to 144 months for robbery under the Hobbs Act, as set forth in Count 1 of the Indictment. (Sentencing J. at 2 [Doc. No. 67].) Counts 2 and 3 were dismissed upon the Government's motion. (Id. at 1.)

         Myers filed his original § 2255 motion on November 14, 2016 [Doc. No. 76]. On November 29, 2016, he filed an amended § 2255 motion [Doc. No. 78]. He subsequently filed a motion for default [Doc. No. 80] and a motion to file a response in opposition to the Government's response [Doc. No. 82]. The Government objects to Myers' § 2255 and default motions [Doc. Nos. 79 & 81].

         II. DISCUSSION

         A. ...


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