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United States v. Ingram

United States District Court, D. Minnesota

April 2, 2019

United States of America, Respondent-Plaintiff,
v.
Milton Eugene Ingram a/k/a Meech, Petitioner-Defendant.

          Milton Eugene Ingram, Petitioner-Defendant, Pro Se.

          Jeffrey S. Paulsen, Assistant United States Attorney, United States Attorney's Office, counsel for the Government.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         This matter is before the Court on Petitioner-Defendant Milton Eugene Ingram's (“Petitioner-Defendant”) pro se motion to correct a clerical error of record in connection to his 2015 sentence pursuant to Federal Rule of Criminal Procedure 36 (“Rule 36”). (Doc. No. 560.) The United States of America (the “Government”) opposes Petitioner-Defendant's motion. (Doc. No. 563.)

         On February 20, 2019, Petitioner-Defendant filed a “Motion Under Fed. R. Crim. P. Rule 36 to Correct Clerical Error of Record.” (Doc. No. 560.) Petitioner-Defendant asserts that two of the previous sentences used to calculate his criminal history score were incorrectly counted separately, resulting in an erroneous additional point. The Government opposes Petitioner-Defendant's motion on two grounds. If, as Petitioner-Defendant alleges, the sentences were improperly added to his criminal history score, the Government notes that that would not be a clerical error per se but a substantive mistake that should have been raised on direct appeal. Moreover, the Government contends that no mistake was made in the calculation of Petitioner-Defendant's criminal history score.

         For the reasons set forth below, the Court denies Petitioner-Defendant's motion.

         BACKGROUND

         On December 7, 2015, Petitioner-Defendant was convicted of a sole count of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count 1) following entry of a guilty plea on February 17, 2015. (Doc. Nos. 416, 208.) This Court sentenced Petitioner-Defendant to the mandatory minimum sentence of 10 years imprisonment, as well as 5 years of supervised release and a $100 special assessment. (Doc. No. 416.) This sentence was anticipated by the parties, as set forth in the plea agreement, on the basis of an adjusted offense level of 27 (base offense level of 30, minus 3 points for acceptance of responsibility) and a criminal history category of III which resulted in an advisory guideline range of 87 to 108 months; a 10-year (120-month) mandatory minimum penalty applied absent a downward departure for substantial assistance.

         This Court previously denied Petitioner-Defendant's motion to set aside, vacate or correct his sentence under 28 U.S.C. § 2255 on the grounds that his counsel did not fail to provide effective assistance as alleged. (Doc. Nos. 514, 518, 523.) As the Court explained in its analysis of Petitioner-Defendant's earlier motion, “the point for each conviction was properly assigned.” (Doc. No. 523 at 7.) While Petitioner-Defendant's allegations differed slightly in his previous motion, this Court's earlier conclusion stands.[1]

         I. Presentence Investigation Report

         At the same hearing in which Petitioner-Defendant entered his guilty plea, a Presentence Investigation Report (“PSR”) was requested. (Doc. No. 208.) This sealed document was filed on August 28, 2015. (Doc. No. 347.) The PSR was provided to the parties prior to sentencing, and both filed responses accordingly. (Doc. Nos. 378, 384.) The PSR accounted for Petitioner-Defendant's prior sentences in his criminal history, adding one point for each of the sentences in question: the first for Misdemeanor Battery with a date of referral of April 23, 2009, and the second for Misdemeanor Theft with a referral date of June 8, 2009. (PSR ¶¶ 66, 67.) Petitioner-Defendant was sentenced in both matters on August 19, 2009. (Id.)

         II. Petitioner-Defendant's Relevant Arrest History

         Petitioner-Defendant argues that because his two misdemeanor convictions were “consolidated” for sentencing purposes, they were wrongly counted as separate convictions in the ...


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