Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Allen

United States District Court, D. Minnesota

August 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DEVORD ALLEN, Defendant.

          Thomas Calhoun-Lopez, Assistant United States Attorney, for plaintiff.

          Devord Allen, pro se.

          MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION

          JOHN R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner Devord Allen pled guilty to one-count charging him with being a Felon in Possession of a Firearm and now moves under 28 U.S.C. § 2255 to vacate his sentence. Allen alleges ineffective assistance of counsel on two grounds: (1) counsel pressuring Allen to sign a plea agreement; and (2) counsel failing to object to and appeal certain sentencing enhancements. Specifically, Allen asserts the Court should not have imposed a 4-level enhancement pursuant to U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2K2.1(b)(4) and the Court improperly calculated Allen's criminal history score pursuant to U.S.S.G. § 4A1.2(a)(2) because his two aggravated robbery convictions were “caught at the same time.” For the reasons set forth below, the Court will deny Allen's motion.

         BACKGROUND

         In May 2015, Allen was charged with three-counts of Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Indictment, May, 4, 2015, Docket No. 1.) Allen pled guilty to Count III and the government dismissed the remaining charges. (Plea Agreement at 1-2, Aug. 23, 2015, Docket No. 54.) As part of the plea agreement, Allen admitted that he “knowingly possessed a . . . pistol with an obliterated serial number.” (Id. at 1-2.) Allen further agreed that a 4-level enhancement pursuant to section 2K2.1(b)(4) for possessing a firearm with an obliterated serial number was appropriate. (Id. at 3.)

         The Court held a change of plea hearing in September 2015. (Ct. Mins., Sept. 23, 2015, Docket No. 52.) At the plea hearing, Allen testified that he was “fully satisfied with the advice and assistance” he received from counsel, that he understood the plea agreement, and that no one had “made any other promise in an effort to get [Allen] to plead guilty.” Allen testified no one “force[d] [him] to plead guilty” and that he was doing so “voluntarily.” Prior to sentencing, a probation officer prepared a Presentence Investigation Report (“PSR”). The PSR included the 4-level enhancement under section 2K2.1(b)(4), recommending a total offense level of 26. (PSR ¶¶ 18, 26, Jan. 11, 2016, Docket No. 68.) The PSR also calculated Allen's criminal history score at 11, establishing a criminal history category of V. (Id. ¶ 37.) To reach a criminal history score of 11, the PSR included 4 criminal history points for an aggravated robbery that occurred in June 2007 and 3 criminal history points for an aggravated robbery that occurred in October 2007. (Id. ¶¶ 32-33.) The PSR reflected that Allen was arrested on different dates for the two crimes, but the state court sentenced him on the same day. (Id.)

         At sentencing, the Court adopted the PSR, including the 4-level enhancement pursuant to section 2K2.1(b)(4), without change. (Statement of Reasons at 1, Jan. 14, 2016, Docket No. 71.) Based on an offense level of 26 and a criminal history category of V, the Court determined Allen's advisory Guidelines range was 110-137 months imprisonment, with a statutory maximum of 120 months imprisonment. (See id.; PSR ¶¶ 69-70.) The Court varied below the advisory Guidelines range and sentenced Allen to 104 months' imprisonment. (Statement of Reasons at 3-4.)

         Allen did not to appeal his sentence. On June 27, 2016, Allen filed the instant motion to vacate, set aside, or correct his sentence pursuant to section 2255. The government opposes the motion.

         ANALYSIS

         I. LEGAL STANDARD

         Section 2255 allows a federal prisoner a limited opportunity to seek post-conviction relief on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Relief under [section] 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         One ground upon which a federal prisoner may seek post-conviction relief is for ineffective assistance of counsel. The Court evaluates claims of ineffective assistance of counsel brought under section 2255 using the framework established in Strickland v. Washington, 466 U.S. 668 (1984). Bass v. United States, 655 F.3d 758, 760 (8th Cir. 2011). To prevail, Allen must establish that counsel's performance “fell below an objective standard of reasonableness, ” and that he suffered prejudice as a result. Strickland, 466 U.S. at 687-88.

         II. INEFFECTIVE ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.