United States District Court, D. Minnesota
William Ike Libby, Jr., Petitioner-Defendant, Pro
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
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.)
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.
reasons set forth below, the Court denies
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.)
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.)
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).
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).
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).)
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.
Presentence Investigation Report
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.
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.)
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.)
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.)
unresolved objection to the PSR was noted in its addendum.
(Id. at A.1.)
Petitioner-Defendant's Predicate Convictions
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 ...