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United States v. Wilborn

United States District Court, D. Minnesota

April 9, 2019

United States of America, Respondent-Plaintiff,
v.
Andre Jamar Wilborn, Petitioner-Defendant.

          Andre Jamar Wilborn, Petitioner-Defendant, Pro Se.

          David P. Steinkamp, 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 Andre Jamar Wilborn's (“Petitioner-Defendant”) pro se motion to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 63.) The United States of America (the “Government”) opposes Petitioner-Defendant's motion. (Doc. No. 71.)

         Petitioner-Defendant seeks relief on two grounds: first he requests that the Court “remove the two point gun enhancement” from his Presentence Investigation Report (“PSR”) so that he may “receive the full benefits of the Residential Drug Abuse Program” (“RDAP”), and second, he requests that the Court “issue [a] judicial recommendation” to the Bureau of Prisons (“BOP”) that Petitioner-Defendant be placed in a Residential Rentry Center (“RRC”). The Government opposes Petitioner-Defendant's motion, arguing that it should be dismissed because the relief sought therein is not appropriate under § 2255. To this point, the Government accurately notes that Petitioner-Defendant did not file an appeal of his sentence and expressly disclaims such an appeal in his motion, resulting in a prayer for relief that would be more appropriately pursued under 28 U.S.C. § 2241.

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

         BACKGROUND

         Petitioner-Defendant is serving a 60-month term of imprisonment and is confined at the Federal Correctional Institution in Oxford, Wisconsin. On February 7, 2018, Petitioner-Defendant was convicted of one count of aiding and abetting Possession With Intent to Distribute Heroin in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 2) following entry of a guilty plea on May 3, 2017. (Doc. Nos. 51, 27.) This Court sentenced Petitioner-Defendant to a sentence of 5 years imprisonment, to run concurrent with his then-pending state court sentence, as well as 5 years of supervised probation and a $100 special assessment. (Doc. No. 51.) Counts 1 and 3 were dismissed on the motion of the Government. (Id.) This Court recommended to the BOP that Petitioner-Defendant be “designated to a Minnesota facility to be close to his family, ” and further, that he “be allowed to participate in the 500-hour Residential Drug Abuse Program offered by the Bureau of Prisons.” (Id.)

         Petitioner-Defendant did not appeal his sentence.

         Petitioner-Defendant requested participation in the RDAP. (Doc. No. 71 (“Gov't. Memo”), Ex. 1.) He was notified on January 18, 2019 that he did not qualify for the program because the BOP determined he did not meet the criteria for a substance use disorder. (Id.) Upon this finding, the BOP determined that no offense review related to Petitioner-Defendant's eligibility was required. (Id.)

         I. Plea Agreement

         Petitioner-Defendant's sentence was in keeping with the terms set forth in a plea agreement signed by Petitioner-Defendant and his counsel on the day he entered his guilty plea. (Doc. No. 28 (“Plea Agreement”).) In the Plea Agreement, the parties stipulated that Petitioner-Defendant “possessed a Taurus, Model Pt111, 9mm semi-automatic pistol in connection with the possession of the heroin.” (Plea Agreement ¶ 2.) The Plea Agreement also stated that Petitioner-Defendant agreed that, were this matter to go to trial, the Government would prove that fact “beyond a reasonable doubt.” (Id.) The parties further acknowledged that the Court would consider the United States Sentencing Guidelines (“the Guidelines”) at sentencing and stipulated to applicable guideline calculations. (Plea Agreement ¶ 5.) These calculations included Specific Offense Characteristics, and Petitioner-Defendant agreed that “a dangerous weapon, a firearm, was possessed, resulting in a 2 level increase to the base offense level” under Guideline §2D1.1(b)(1). (Plea Agreement ¶ 5(b), citing USSG §2D1.1(b)(1).)

         II. Presentence ...


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