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United States v. Benshoof

United States District Court, D. Minnesota

September 19, 2017

United States of America, Plaintiff/Respondent,
v.
Vincent Mario Benshoof, Defendant/Petitioner.

          LeeAnn K. Bell, Assistant United States Attorney, Counsel for Respondent.

          Petitioner, pro se.

          MEMORANDUM OPINION AND ORDER

          MICHAEL J. DAVIS JUDGE

         This matter is before the Court upon the petition of Vincent Benshoof to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.

         I. Procedural History

         On May 15, 2014, Petitioner pleaded guilty to Count 1 of the Indictment which charged conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.

         Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR") advising that the total offense level for the crime of conviction was 29 and that his criminal history category was IV.

         Petitioner objected to the determination that he was an average participant and that a criminal history category IV overstated his criminal history and the likelihood he would reoffend. The Court overruled the objection as to role in the offense and granted a downward departure as to criminal history category, finding that a category III better stated his criminal history and the likelihood he would reoffend. The Court found the applicable guideline range to be 120 to 135 months. The bottom of the range was based on the applicable statutory mandatory minimum sentence for the offense of conviction. The Defendant was sentenced to 120 months in prison, followed by five years supervised release.

         Petitioner filed a Notice of Appeal, but later moved to dismiss his Appeal, which motion was granted.

         On November 9, 2016, Petitioner filed the instant petition, claiming his defense counsel provided ineffective assistance of counsel.

         II. Standard of Review

         Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence . . . claiming the right to be released upon the ground 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 is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Section 2255 is intended to provide federal prisoners a remedy for jurisdictional or constitutional errors. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011). It is not intended to be a substitute for appeal or to relitigate matters decided on appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998); Davis v. United States, 417 U.S. 333, 346-47 (1974)).

Relief under 28 U.S.C. ยง 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. A movant may not raise constitutional issues for the first time on collateral review without ...

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