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Lunsford v. United States

United States District Court, M.D. Tennessee, Nashville Division

January 10, 2017

DEVONTE LUNSFORD, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          WILLIAM J. HAYNES JR. Senior United States District Judge

         Movant, Devonte Lunsford, filed this pro se action under 28 U.S.C. § 2255, seeking to vacate, set aside, or correct sentence for armed bank robbery and brandishing a firearm during and in relation to a crime of violence, for which he received an effective sentence of 120 months. Movant asserts (1) that his attorney was ineffective because he failed to challenge the affidavit in support of the criminal complaint, he failed to request discovery, and he failed to file a motion to suppress evidence; (2) that because a jury did not find that Movant brandished the firearm his sentence could not be enhanced to eighty-four (84) months in light of Alleyne v. United States, 133 S.Ct. 2151 (2013); and (3) that under Alleyne he is actually innocent of the brandishing count because he was not charged with brandishing in the indictment and that, as a result, he should have been sentenced to 60 months for possessing, carrying or using a firearm under 18 U.S.C. § 924(c)(1)(A) instead of sentenced to the mandatory 84 months for brandishing under 18 U.S.C. § 924(c)(1)(A)(ii).

         The Court ordered Respondent to respond, (Docket Entry No. 3), to which Respondent filed a motion to dismiss (Docket Entry No. 11), asserting (1) that Movant's ineffective assistance of counsel claims are conclusory and that the record shows that Movant's counsel's performance was not deficient and that Movant did not suffer any prejudice from any alleged inaction by his counsel; (2) that Movant's claims under Alleyne are procedurally defaulted and that, in any event, Movant admitted to brandishing of the firearm at his guilty plea; and (3) that Movant is not actually innocence of the crime.

         The Court appointed the Federal Public Defender to represent Movant, (Docket Entry No. 15), and in an amended motion to vacate[1] (Docket Entry No. 21), asserted (1) that Movant was denied effective assistance of counsel by counsel's failure to advise adequately Movant of the impact of Alleyne on plea proceedings and sentencing; (2) that the imposition of a sentence for "brandishing" a firearm violated the Sixth Amendment right to trial by jury where Movant did not admit to all of the essential elements of "brandishing" a firearm in furtherance of a crime of violence; and (3) that trial counsel was ineffective for failing to recognize this Sixth Amendment violation at sentencing, failing to recognize and preserve the issue for appeal, and failing to appeal the issue to the Sixth Circuit.

         Respondent filed a supplemented motion to dismiss (Docket Entry No. 23), contending that the indictment specifically charged Movant with brandishing a firearm and Movant could not have pled guilty without admitting that element of the offense as charged in the indictment and that Movant's argument that he did not actually admit to brandishing a firearm is procedurally defaulted, waived, and, factually erroneous.

         A. Findings of Fact

         On May 10, 2012, Movant and a co-defendant were charged in a criminal complaint with armed bank robbery. (Criminal No. 3:12-cr-00094-01, Docket Entry No. 1). The complaint alleged that on May 8, 2012, two men, brandishing guns, entered a bank and demanded money from bank employees. Id., at 2. The men left the bank with $ 17, 898, but were soon apprehended by the police. Id., at 2-3. Movant was in possession of a bag with $14, 719 and a loaded pistol. Id., at 3. A video capturing the robbery showed that one of the robber's clothing matched the clothing worn by Movant at the time of his arrest. Id. Movant waived his Miranda rights and confessed verbally and in writing to Federal Bureau of Investigation Agent Charles Dick. Id.

         On May 14, 2012, Movant appeared for his initial appearance and was temporarily detained. Id., Docket Entry Nos. 7, 11. The magistrate judge set a preliminary examination and detention hearing for May 17, 2012. Id., Docket Entry No. 7. On May 16, 2012, a federal grand jury indicted Movant for armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d) and 2 (Count One), and for using, carrying and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Two). Id., Docket Entry No. 18. Count Two charged that Movant "did knowingly use, carry, and brandish, a firearm: to wit a Taurus, .40 caliber pistol, during and in relation to a crime of violence ... that is armed bank robbery.....In violation of Title 18, United States Code, Sections 924(c)(1)(A) and 2." Id., at 2 (emphasis added).

         On August 5, 2013, Movant pled guilty to armed bank robbery and to brandishing a firearm during and in relation to a crime of violence. Id., Docket Entry Nos. 64-65. The plea petition states, in part, the following:

(3) I have received a copy of the indictment before being called upon to plead and have read and discussed it with my lawyer, and believe and feel that I understand every accusation made against me in the indictment.
(4) I have had sufficient opportunity to discuss with my lawyer the facts and surrounding circumstances concerning the matters mentioned in the indictment. My lawyer has counseled and advised with me as to the nature and cause of every accusation against me. We have thoroughly discussed the government's case against me and my potential defenses to the government's case. My lawyer has explained each element of the crime charged to me and what the government would offer to prove these elements beyond a reasonable doubt.
(5) I understand that the statutory penalty for each of the offenses with which I am charged is, a. as to Count One - armed bank robbery:
i. not more than twenty-five (25) years imprisonment,
ii. restitution of no more than $9, 324.17,
iii. a fine of up to $250, 000.00,
iv. a mandatory $100 special assessment, and
v. a term of supervised release of not more than five (5) years in addition to such term of imprisonment.
b. as to Count Two - brandishing a firearm during a crime of violence:
i. not less than seven (7) years imprisonment,
ii. a fine of up to $250, 000.00,
iii. a mandatory $100 special assessment, and
iv. a term of supervised release of not more than three (3) years in addition to such term of imprisonment.
I understand that terms of imprisonment for convictions on more than one count may be ordered to run concurrently or consecutively with each other and that a sentence on Count Two would be required to run consecutively to the sentence on Count One.
(6) ......My lawyer and I have discussed the calculation of the Guidelines in my case. My lawyer has given me an estimate of the Guidelines range that may apply in my case as 33 - 41 months 84 months (117 -125 months).

Id., Docket Entry No. 65 at 1-2 (emphasis added and in original).

         At his plea colloquy, Movant acknowledged that he was pleading guilty "[t]o a bank robbery charge and brandishing a firearm." Id., Docket Entry No. 77 at 6. The Court also stated, "For the use, carrying, and brandishing of a firearm, the government will be required to prove the offense of the armed bank robbery and also prove that you, in fact, used, carried or brandished a firearm during that bank robbery. Do you understand that?" Id., at 11. Movant responded "Yes, sir." Id. The Court then asked Movant, "Do you understand what the government has to prove to show that you brandished a firearm during the act of violence? Do you understand that?, " to which Movant responded, "Yes, sir." Id., 12.

         Movant also stated that he was satisfied with his counsel's representation and that counsel had gone over with him the charges, the elements of the offense, the maximum penalty, his discovery of the government's proof if Movant's case went to trial, and what counsel's investigation into the charges revealed. Id., at 17. Movant also testified that he was not pleading guilty because his lawyer was making him do it and that no one from the government had threatened him, leaned on him, or promised him anything. Id. at 18. Movant further testified that he made his decision to plead guilty freely and did so with the benefit of his lawyer's advice. Id.

         A statement of proof against Movant was then read into the record that included the statement that "[t]he two men both brandished weapons and approached the teller stations." Id., at 19. Movant admitted that the statements of fact were true and accurate. Id., at 20. Movant also testified as follows:

Q. Tell me what you did.
A. Me? I had the gun in my possession, and me and Tanner Patterson forced ourselves into the bank and robbed the bank.
Q. Did you have something with you? I couldn't hear it. What did you have with you ...

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