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United States v. Libby

United States District Court, D. Minnesota

July 3, 2019

United States of America, Respondent-Plaintiff,
v.
William Ike Libby, Jr., Petitioner-Defendant.

          William Ike Libby, Jr., Petitioner-Defendant, Pro Se.

          Lisa D. Kirkpatrick, 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 William Ike Libby, Jr.'s (“Petitioner-Defendant”) pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. No. 142.) The United States of America (the “Government”) opposes Petitioner-Defendant's motion. (Doc. No. 148.)

         Specifically, Petitioner-Defendant alleges that he received ineffective assistance of counsel in that his attorney failed to challenge two prior convictions counted as predicates for sentencing purposes and requests that he be resentenced without enhancement pursuant to the Armed Career Criminal Act (“ACCA”). The Government opposes any order to disturb the judgment entered on the grounds that Petitioner-Defendant received adequate representation throughout the proceedings, and any attempt on his counsel's part to contest the applicability of the ACCA would have been futile. The Government further argues that no evidentiary hearing is warranted because the record conclusively supports the judgment as entered.

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

         BACKGROUND

         Petitioner-Defendant was charged with a single count of being a felon in possession of a firearm by an indictment filed on June 9, 2015. (Doc. No. 1 (“Indictment”).) The Indictment listed a sole count in violation of both 18 U.S.C. § 922(g)(1) and, because Petitioner-Defendant was previously convicted of at least three qualifying predicate offenses, 18 U.S.C. § 924(e). (Id.)

         Pursuant to a written plea agreement (Doc. No. 97 (“Plea Agreement”)), on March 24, 2016, Petitioner-Defendant entered a plea of guilty to the sole count of the Indictment. (See also, Doc. No. 96.) A Presentence Investigation Report (“PSR”) was ordered (see id.), and each party filed a sentencing memorandum setting forth their respective positions (Doc. Nos. 108, 109). Petitioner-Defendant also submitted two supplemental memoranda to clarify his position on sentencing issues. (Doc. Nos. 112, 116.) The PSR included calculations under the 2015 United States Sentencing Guidelines (the “Guidelines”) totaling an adjusted offense level of 31 and a criminal history category (“CHC”) of VI, which resulted in an advisory Guidelines range of 188 to 235 months' imprisonment. (Doc. No. 106 (“PSR”) ¶¶ 16, 92.) Petitioner-Defendant responded to the initial version of the PSR that was disclosed to the parties; one proposed amendment was incorporated into the final version. (PSR at A.1.) Petitioner-Defendant's remaining objection was noted in the PSR Addendum, and the substance of the objection was also addressed in Petitioner-Defendant's first sentencing memorandum. (PSR at A.1-2; Doc. No. 108 at 2.)

         Petitioner-Defendant was sentenced on December 22, 2016. At sentencing, this Court adopted the PSR without change. (Doc. No. 126 (“Statement of Reasons”) Sec. I.) The Court pronounced a sentence below the Guidelines range, sentencing Petitioner-Defendant to 180 months of imprisonment, to run concurrent with his undischarged term of imprisonment as to a pending state court matter, to be followed by 5 years of supervised release (Doc. No. 125 at 1-3; Doc. No. 136 (“Sentencing Hearing”) at 53, 62).

         Petitioner-Defendant filed a Notice of Appeal on December 30, 2016. (Doc. No. 130.) Petitioner-Defendant appealed his sentence on the ground that his October 1997 conviction for first degree aggravate robbery was not a qualifying predicate offense for sentencing pursuant to the ACCA. United States v. Libby, 880 F.3d 1011, 1013 (8th Cir. 2018). In his appeal, Petitioner-Defendant did not contest that the other two prior convictions counted as predicates in determining him to be an armed career criminal (“ACC”). Id. The Eighth Circuit found that the Minnesota statute in question was divisible and, using the categorical approach, found that Petitioner-Defendant's conviction qualified as a violent felony for the purposes of the ACCA, and affirmed his sentence. Id. at 1014, 1016. Petitioner-Defendant timely filed this § 2255 motion and supporting memorandum of law on March 15, 2019 (Doc. Nos. 142, 143), which the Government opposed (Doc. No. 148).

         I. Plea Agreement

         Petitioner-Defendant signed a Plea Agreement with the Government on March 24, 2016. (Plea Agreement at 6.) The parties agreed that Petitioner-Defendant would plead guilty to the single listed count, Count 1, Felon in Possession of a Firearm - Armed Career Criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Id. ¶ 1.) The parties agreed to the factual basis for the offense and that Petitioner-Defendant is an Armed Career Criminal (“ACC”) based on his prior convictions for violent felonies or serious drug offenses, including convictions for First Degree Aggravated Robbery, Second Degree Assault, and Second Degree Sale of a Controlled Substance. (Id. ¶ 2.) The parties also agreed that by statute, Count 1 carried a mandatory minimum penalty of 15 years' imprisonment. (Id. ¶ 3(b).) The Plea Agreement addressed the applicable Guidelines, with the parties stipulating that the applicable base offense level was 34 and was subject to enhancement due to Petitioner-Defendant's status as an ACC. (Id. ¶ 5(a).) The parties also agreed that no specific offense characteristics applied, and stated that it was their shared belief, but not a stipulation, that Petitioner-Defendant's criminal history score would place him in CHC VI. (Id. ¶ 5(b), (d).) Using these calculations, factoring in a three-level reduction in the offense level for acceptance of responsibility, the parties agreed that the applicable Guidelines range would be a sentence of 188 to 235 months' imprisonment. (Id. ¶ 5(c)-(e).) The Government agreed to recommend a sentence of 180 months of imprisonment as long as Petitioner-Defendant demonstrated acceptance of responsibility as anticipated in the Plea Agreement. (Id. ¶ 5(h).)

         The parties stated their understanding that while they were bound by their stipulations with respect to Guidelines calculations, the Court was not. (Id. ¶ 6.) The parties agreed that the Court “may make its own determination regarding the applicable guideline factors and the applicable [CHC], ” and “may also depart from the applicable Guidelines.” (Id.) Even if the Court determined that the applicable Guidelines calculations or Petitioner-Defendant's CHC were different from those calculated by the parties, they agreed that they could not withdraw from the Plea Agreement and that this Court's determinations would govern the sentence imposed. (Id.)

         II. Presentence Investigation Report

         On the same day that Petitioner-Defendant entered his plea of guilty, this Court ordered the United States Probation Department (“Probation”) to prepare a Presentence Investigation Report (“PSR”). (Doc. No. 96.) The PSR included a summary of the Plea Agreement, noting the parties' mutual belief that Petitioner-Defendant qualified as an ACC and was subject to such sentencing enhancements, but that the Plea Agreement did not address waivers of appeal. (Doc. No. 106 (“PSR”) ¶ 3.) The PSR also recounted the underlying offense conduct for Count 1 of the Indictment, including Petitioner-Defendant's admission that “he knew he was prohibited from possessing firearms, as he had multiple prior felony convictions.” (Id. ¶ 11.)

         The PSR discussed the application of the Guidelines, using the then-current 2015 version which incorporated all amendments. (Id. ¶ 16.) Petitioner-Defendant's base offense level was calculated to be 24 due to his prior felony convictions, specifically his October 2007 convictions for first degree aggravated robbery and second degree assault as well as his 2010 conviction for second degree sale of drugs. (Id. ¶ 17.) Pursuant to USSG §2K2.1(b)(6), Petitioner-Defendant was subject to a four-point increase because he possessed weapons in connections with another felony offense. (Id. ¶ 20.) The cross reference was considered but the Guidelines calculations under the specific offense characteristic enhancement were used because it resulted in the higher offense level. (Id. ¶ 21.) The final calculus, factoring in Petitioner-Defendant's status as an ACC as well as a three-level reduction for acceptance of responsibility, resulted in an adjusted offense level of 31. (Id. ¶¶ 26, 29.)

         Part B of the PSR detailed Petitioner-Defendant's criminal history, noting the three prior felony convictions which were counted as ACCA predicates. (Id. at ¶ 40, 41, 50.) Two points were added to his score per the Guidelines because the offenses in question took place while Petitioner-Defendant was under a previously imposed criminal sentence, resulting in a total score of 22 which placed Petitioner-Defendant in CHC VI. (Id. at ¶¶ 53-55.) Following the Guidelines, the total offense level of 31 combined with a CHC of VI resulted in a range of 188 to 235 months' imprisonment, the same range contemplated in the Plea Agreement. (Id. at ¶¶ 92, 94.) Aside from the Guidelines, by statute Petitioner-Defendant faced a minimum term of 15 years' imprisonment. (Id. ¶ 91.)

         The PSR also noted that at the time of sentencing, Petitioner-Defendant was serving an undischarged term of imprisonment for a previous state court conviction, and that his sentence for the present case could be imposed to run concurrently, partially concurrently, or consecutively to the undischarged term. (Id. at ¶ 93.)

         Petitioner-Defendant's unresolved objection to the PSR was noted in its addendum. (Id. at A.1.)

         III. Petitioner-Defendant's Predicate Convictions

         Both the Plea Agreement and the PSR outlined Petitioner-Defendant's prior convictions, including three that the parties agreed were predicate convictions under the ACCA. (Plea Agreement at 2; PSR ¶¶ 40, 41, 50.) Petitioner-Defendant was convicted on October 31, 1997, of two separate offenses which took place on or about April 15, 1997 and July 17, 1997, respectively. (Doc. No. 118-2, Petitioner-Defendant Second Supplemental Memorandum Exh. 2 at 13, 24.) As noted in the Plea Agreement and detailed in the PSR, Petitioner-Defendant was convicted as an adult of Aggravated Robbery in the First Degree in violation of Minn. Stat. § 609.245 subd. 1 as well as Assault in the Second Degree in violation of Minn. Stat. § 609.222 subd. 1 in October of 1997, and later convicted of Sale of a Controlled Substance in the Second Degree in ...


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