United States District Court, D. Minnesota
Calhoun-Lopez, Assistant United States Attorney, for
Allen, pro se.
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S
28 U.S.C. § 2255 MOTION
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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.)
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
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.)
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
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).
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