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United States v. Benson

United States District Court, D. Minnesota

November 14, 2019

United States of America, Plaintiff,
v.
Tyvion W. Benson, Defendant.

          Jeffrey S. Paulsen, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Tyvion W. Benson, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Defendant Tyvion W. Benson's (“Benson”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Docket No. 259] (the “§ 2255 Motion”) and Pro Se Consolidated Motion to Amend under Fed. R. Civil P. 15 [Docket No. 272] (“Motion to Amend”).[1] For the reasons set forth below, Benson's Motion to Amend is granted and the § 2255 Motion is denied.[2]

         II. BACKGROUND

         On January 03, 2017, Benson entered a plea of guilty to Count I of the Indictment, which charged him with conspiring to violate 18 U.S.C. § 922(g)(1), the felon in possession of a firearm statute. See Plea Agreement [Docket No. 116] ¶ 1. In the Plea Agreement, Benson admitted:

during the time period of July, 2014 through November 7, 2016, in the State and District of Minnesota and elsewhere, the defendant, Tyvion [W.] Benson, knowingly and intentionally conspired with his co-defendants and others to violate Title 18, United States Code, Section 922(g)(1), which makes it a federal crime to be a felon in possession of a firearm. Specifically, the defendant was a member of the Hit Squad street gang. Many of the members of this gang, including the defendant, were convicted felons who were prohibited from possessing firearms. One of the purposes of the gang was to prevent rival gang members from entering what the Hit Squad members considered to be their turf; namely, certain parts of the West side of St. Paul, Minnesota.

Id. Benson then admitted to five overt acts in furtherance of the gang war engaged in by the Hit Squad members. Benson admitted that he personally possessed various firearms in three out of five of the acts. Id. ¶ 1(B), (C), (E). For example, “on May 14, 2015, the defendant possessed a loaded Accu-Tek .380 caliber semi-automatic pistol during a traffic stop in St. Paul, Minnesota.” Id. ¶ 1(E). Two of the overt acts admit to joint possession of a firearm with co-defendants. Id. ¶ 1(A), (D). At the change of plea hearing the Government established the factual basis of the plea:

Prosecutor: And as part of this gang war, did you and your fellow Hit Squad members make an agreement to possess firearms? Let me ask it this way: This was a shooting gang war, wasn't it?
Benson: Yes, sir. . . .
Prosecutor: And you and your fellow gang members, was there an agreement to possess guns jointly for purposes of carrying out the gang war?
Benson: Yes, sir.
Prosecutor: And you were part of that agreement?
Benson: Yes, sir.

Plea Hr'g Tr. [Docket No. 268] at 19. The Government further established the factual basis by asking Benson about the several overt acts. For example:

Prosecutor: And I want to discuss some of the overt acts that occurred that you were personally involved in during the conspiracy. . . . [T]hen on October 28th of 2014, there was a shootout on the west side of St. Paul in which a HAM Crazy gang member was shot in the back?
Benson: Yes, sir.
Prosecutor: And you were over there as part of that altercation, weren't you?
Benson: Yes, sir.
Prosecutor: And you got caught in possession of a .32 caliber ...

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