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United States v. Brown

United States District Court, D. Minnesota

May 9, 2018


          Julie E. Allyn, United States Attorney's Office, on behalf of Plaintiff

          Rayshawn Earl James Brown, No. 16545-041, Federal Correctional Institution-Pekin, Pro Se



         This matter is before the Court on the following pro se motions filed by Defendant Rayshawn Earl James Brown (“Brown”): Motion for Modification of Sentence [Doc. No. 213]; Letter Requests for Sentencing Modification [Doc. Nos. 218 & 223]; Motion for Appointment of Counsel [Doc. No. 220]; Application to Proceed Without Prepayment of Fees and/or Costs (“IFP Motion”) [Doc. No. 221]; and Letter Request for a Modification of Restitution [Doc. No. 222]. For the reasons set forth below, Brown's requests for sentencing and restitution modifications are denied, and his motions for appointment of counsel and IFP status are denied without prejudice as moot.

         I. BACKGROUND

         The facts of Brown's conviction are thoroughly set forth in this Court's Order of December 19, 2016 [Doc. No. 209], and are incorporated herein by reference. In 2012, the Government charged Brown, along with two co-defendants, for his role in the armed robberies of pharmacies that occurred in St. Paul, Minnesota during the spring of 2012. In July, 2012, the Government charged Brown with the following crimes alleged to have occurred on April 3, 2012: (1) the robbery of the West Seventh Pharmacy, St. Paul, Minnesota, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 2, (Indictment [Doc. No. 19], Count 1); (2) robbery involving controlled substances, in violation of 18 U.S.C. §§ 2118(a) & 2, (id., Count 2); and (3) two counts of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1), with Counts 1 and 2 serving as the underlying crimes of violence. (Id., Counts 3 & 4.)

         Brown and the Government later entered into a plea agreement (the “Plea Agreement”). The Government agreed to move to dismiss Counts 2 and 4 of the Indictment in exchange for Brown's guilty plea to Count 1 for the West Seventh Pharmacy robbery and Count 3 for firearm possession in furtherance of that robbery. (See Sept. 21, 2012 Minutes [Doc. No. 94].) Also in the Plea Agreement, Brown admitted to additional relevant conduct, namely, the armed robbery of Pro Pharmacy in St. Paul, Minnesota, on March 27, 2012. (See Def.'s Mot. at 2) (citing Plea Agmt.)

         On May 15, 2013, the Court sentenced Brown to 120 months in prison. (Sentencing Judgment at 2 [Doc. No. 174].) The sentence consisted of 36 months on Count 1 and 84 months on Count 3, to be served consecutively. (Id.) Brown did not file a direct appeal.

         In May 2016, Brown filed a pro se § 2255 motion. In that first § 2255 motion, Brown challenged his conviction for possession of a firearm under § 924(c) in light of the U.S. Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (Def.'s Mem. Supp. First § 2255 Mot. at 1-2 [Doc. No. No. 190].) On December 19, 2016, this Court denied his § 2255 motion, finding that it was time-barred, that Brown had procedurally defaulted by failing to assert his claim on direct appeal, and that his claim failed on the merits, as Johnson was inapplicable to his case. (Order of Dec. 19, 2016 at 2-5.)

         In his current motion for modification of his sentence, Brown argues that the Court improperly applied a five-level firearm sentencing enhancement. (See Def.'s Mot. at 2-5). In supplemental filings, he also contends that the U.S. Supreme Court's decision in United States v. Dean, 137 S.Ct. 1170 (2017), applies to his case on collateral review and warrants re-sentencing. (See Apr. 20, 2017 Letter at 4 [Doc. No. 218]; Jan. 16, 2018 Letter at 1-3 [Doc. No. 223].) Finally, Brown seeks modification of his restitution order, seeking to stay further payments pending his release, and requests the appointment of counsel and for IFP status in connection with his motions.


         Under § 2255(a), a federal prisoner may seek post-conviction relief on the grounds that “the [prisoner's] 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). This relief is only available in limited circumstances and 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.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

         Brown fails to identify the statutory framework supporting his two bases for re-sentencing. However, because his requests attack the validity of his sentence, like his first § 2255 motion, the Court construes them collectively as a second request for relief under § 2255. A prisoner seeking to file a second or successive § 2255 motion must first move the applicable court of appeals for an order that authorizes the district court to entertain the motion. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3)(A). Brown did not request permission from the Eighth Circuit to file such a motion and this Court is therefore without authority to consider it. See 28 U.S.C. § 2255(h); see also Boykin v. United States, 242 F.3d 373 (8th Cir. 2000).

         Even if the Court could consider Brown's motion, however, it would be time- barred because it was not filed within the one-year limitations period. See 28 U.S.C. § 2255(f)(1). Under § 2255(f)(1), the general limitations period for Brown to collaterally challenge his sentence expired in May 2014, one year after his judgment of conviction became final.[1] Id.

         Further, Brown's motion is procedurally barred because he could have raised his claims earlier. “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice, ' or that he is ‘actually innocent.'” Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted). The direct-appeal filing deadline has long passed. See Fed. R. App. P. 4(b)(1)(A) (setting deadline at 14 days after entry of judgment); Sentencing Judgment (imposing judgment on May 15, 2013). Brown has made no showing of either cause and actual prejudice, or actual innocence.

         Finally, even if Brown's claims did not suffer from these infirmities, they would nevertheless fail on the merits, as discussed below.

         A. Amendment 599 to the U.S. Sentencing Guidelines

         Brown argues that this Court improperly applied a five-point firearm enhancement to his sentence, resulting in improper double counting. (See Def.'s Mot. at 2-5). But Brown appears to misunderstand the specific offense conduct on which the five-point enhancement was based. It was not based on the West Seventh Pharmacy robbery, set forth in Count 1, but on the other relevant conduct involving the robbery of Pro Pharmacy.

         Section 924(c) proscribes a separate offense for those who use or possess a firearm while committing a predicate violent or drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). Amendment 599 to the U.S. Sentencing Guidelines (the “Guidelines”), effective November 1, 2000, clarifies the circumstances under which a weapons enhancement may be applied to an underlying offense when the defendant is also convicted of firearm use or possession under § 924(c). See United States v. Friend, 303 F.3d 921, 922 (8th Cir. 2002). The Amendment revised the commentary to the application notes concerning § 2K2, stating, in part,

If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct).

         U.S. Sentencing Guidelines Manual, App. C, Vol. II at 67-69 (2003).

         This Court imposed Brown's sentence for the West Seventh Pharmacy robbery under § 924(c) in compliance with this directive, and as contemplated in the parties' Plea Agreement and in the Presentence Investigation Report (“PSR”), prepared by the U.S. Probation Office. (See Def.'s Mot. at 2) (citing Plea Agmt.); (Gov't's Opp'n Mem. at 3 [Doc. No. 219]) (citing PSR at F.2). The PSR advised that “[n]o weapon enhancement is applicable because that conduct is captured in the mandatory consecutive sentence required on Count 3.” (See Gov't's Opp'n Mem. at 3) (citing PSR at F.2). Because Brown's sentence on the ยง 924(c) offense ...

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