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Bugg v. United States

United States District Court, E.D. Tennessee, Chattanooga

June 19, 2017

KENDRICK BUGG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          CHRISTOPHER H. STEGER MAGISTRATE JUDGE

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's supplemented pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 100 (original petition); Doc. 112 (first amended petition); Doc. 113 (second amended petition); Doc. 119 (supplement)). The United States responded in opposition to the original petition on December 24, 2014 (Doc. 103), and the supplemented petitions on July 25, 2016 (Doc. 115). Petitioner replied to the first response on January 30, 2015 (Doc. 105), but did not reply to the second response within the time allowed for doing so. E.D. Tenn. L.R. 7.1, 7.2. For the reasons discussed below, Petitioner's supplemented § 2255 motion (Docs. 100, 112, 113, 119) will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         On December 29, 2001, storeowner Charles White and his employee Gary Talley were seated on opposite sides of a desk in the rear of a Western Auto store, eating their breakfast, when a man wearing a hat entered the store and went down a “far, far aisle” (Doc. 71 pp. 55, 76).[1] The man ran up to the desk, held a black gun to Talley's head, and announced, “robbery” (Id. at 55, 57, 66, 68-69, 72, 75-76).[2] The masked robber then ordered White and Talley to lie face-down on the floor and restrained their hands and feet with duct tape (Id. at 55-56, 64-65, 72-73, 77). The robber grabbed White's billfold, looked inside it for cash, and took a gold ring from White (Id. at 56, 70). The robber then asked how to open the cash registers, and White said to “pull the lever” (Id. at 55, 64).[3] At trial, White estimated that the robber did not get more than “a few hundred dollars” from the registers, because it was early in the day (Id. at 58). The robber also “jacked (the) gun back, ” chambering a round of ammunition, and asked how to open the safe, but White and Talley insisted that they did not know the combination (Id. at 55-56, 64-67, 73, 76).

         Just before leaving, the robber grabbed a bottle of hand lotion from behind the counter and squirted lotion over the cash registers, then ripped the telephone from the wall and threw it to the floor (Id. at 56, 60-61, 63-64, 66, 74-75). White and Talley eventually freed themselves from the duct tape and phoned the police (Id. at 68, 77).

         Detective Michael Early responded to the scene of the robbery and collected evidence, including the lotion bottle and three pieces of duct tape (Id. at 82-84). Although no fingerprints could be lifted from the cash registers in the store because of the lotion being “squirted all over, ” or from White's wallet, because of its coarse leather-grain surface, Police Sergeant Darrel Whitfield lifted three latent fingerprints from the lotion bottle and submitted them for analysis (Id. at 118-20, 123-29). Lori Uhle, a scientist from the FBI laboratory, analyzed the prints lifted from the lotion bottle, determined that only one was usable, and identified it as Petitioner's right thumb print; another examiner independently verified that conclusion (Id. at 129-30, 136-38, 140).

         On December 12, 2006, a grand jury charged Petitioner with robbing the Western Auto store on December 29, 2001, in violation of 18 U.S.C. § 1951, and brandishing a firearm during and in relation to that crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Doc. 1). Before trial, the United States filed notice of its intent to present evidence, pursuant to Federal Rule of Evidence 404(b), of Petitioner's involvement in three other armed robberies, on February 26, 2002, March 7, 2002, and March 8, 2002 (Doc. 24).[4] The United States explained that the evidence was relevant to establish petitioner's identity and to demonstrate a unique modus operandi (Id. at 3-4).

         During voir dire, defense counsel informed the prospective jurors that the United States intended to present “proof (that) doesn't have anything to do with this robbery” (Doc. 70 p. 37). Defense counsel then asked, “because somebody is accused of doing something at another time, in your opinion does it make it more likely that they did something before that's similar? Is everybody willing to give (Petitioner) the benefit of the doubt that just because he may have done something later, he didn't do this one?” (Id. at 38). None of the prospective jurors indicated any difficulty in evaluating (Petitioner's) guilt as to the charged offense alone (Id.).

         During opening statements, after summarizing the evidence of Petitioner's guilt, the prosecutor mentioned that the jury “may well hear proof of three other robberies (Petitioner) was involved in, one he's already been convicted of, and duct tape and a firearm were found in his car at that point in time, and two that he's never been charged with . . ., (where) two men went in wearing masks, waving guns around, got money out of the cash registers, and taped the victims . . . up with duct tape behind their back” (Doc. 71 p. 51). The prosecutor continued, without any objection from Petitioner:

I anticipate you might well hear from (Petitioner's) uncle, Carl Fritz, who . . . (has) been convicted of a robbery and a gun charge . . . and is now cooperating with the United States. . . . I anticipate that, if he testifies, he'll tell you that he's the one who duct-taped the people at the (two uncharged robberies), because he robbed them with Mr. Bugg, (who) came in and supplied guns, masks, and this duct tape, and instructed Mr. Fritz on how you duct-tape somebody. . . . I anticipate you may well hear that . . . that was his M.O., his modus operandi, that's how Mr. Bugg robbed people, robbed stores, and he instructed his uncle Carl Fritz on how to do it.

(Id. at 51-52). In response, defense counsel stated that the only evidence linking Petitioner to the charged robbery was a single fingerprint (Id. at 52-53). Petitioner subsequently objected to the admission of any evidence regarding the 2002 robbery, and the Court excluded the evidence, on the ground that its prejudicial effect would outweigh its probative value (Id. at 84-85, 96-97, 114-17). At the close of trial, the jury convicted Petitioner as charged (Id. at 171-73). At no point before the verdict was a judgment of acquittal requested under Federal Rule of Criminal Procedure 29 (Id. at 142-43).

         Under the 2008 version of the Sentencing Guidelines, the base offense level for a Hobbs Act robbery is twenty, enhanced by two levels to twenty-two, pursuant to U.S.S.G. § 2B3.1(4)(B), because petitioner physically restrained his victims (Presentence Investigation Report (PSR) ¶¶ 11, 12, 14). Based on two prior felony convictions for robbery, the United States Probation Office (USPO) deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with a corresponding offense level of thirty-two (Id. ¶¶ 22, 33, 34). Petitioner's twelve criminal history points yielded a criminal history category of V, enhanced to VI by his career-offender classification (Id. ¶ 38). The Guidelines range for the Hobbs Act robbery, given the career-offender classification, was 210 to 262 months' imprisonment (Id. ¶¶ 23, 68). The § 924(c) offense carried a statutorily mandated consecutive term of twenty-five years' imprisonment because Petitioner had a prior conviction for violating § 924(c) (Id. at ¶¶ 19, 23, 67, 68). Together, the offenses yielded an effective Guidelines range of 510 to 562 months (Id.).

         Petitioner objected to “any reference in the PSR . . . implicating him in the instant offense” (Doc. 54 p. 1). He also suggested that his sentence for the instant § 924(c) conviction should run concurrently with the sentence he was then serving for his earlier § 924(c) conviction because, in his view, the offenses were related and had merely been prosecuted separately (Id. at 1-3; Doc. 53 (asking the Court to run the sentence for his instant convictions concurrently with the sentence for his prior robbery conviction because his existing sentence adequately satisfied the § 3553(a) factors)). The USPO responded by noting the absence of any evidence linking Petitioner's robbery of the Western Auto on December 29, 2001, to his subsequent robbery of a convenience store on March 8, 2002, for which he had been convicted in 2002 (PSR Addendum).

         In a series of motions, Petitioner argued that he should have been indicted for both robberies at the same time, and that, because the government did not do so, the indictment should be dismissed as vindictive or, at the very least, he should not be sentenced as a career offender, which he characterized as a double jeopardy violation (Doc. 51).[5] He also moved for a downward departure, citing the same reasons and arguing that “the government . . . held back this Indictment, stripped away (his) ability to receive any benefit of the grouping rules . . . in the Guidelines, and ultimately caused him to receive a much harsher sentence” (Doc. 52 p. 2).

         The United States responded that the prosecutor who brought the instant charges was not involved in the initial prosecution of Petitioner, and that, although Petitioner was invited to cooperate after the instant charges were filed, no further charges were filed when he declined to do so, even though Petitioner had been implicated in at least six other armed robberies during that time period (Doc. 55 p. 2). “(T)hat (Petitioner) face(d) a significant sentence for his crimes is no indication or proof of prosecutorial vindictiveness, ” and “the fact that (he) robbed multiple establishments with a similar modus operandi does not insulate him from prosecution for each of the robberies” (Id. at 6-7). Indeed, “there was no prosecutorial advantage gained by the delay in (the) indictment” (Id. at 9), and Petitioner sustained no prejudice (See generally Doc. 55).

         On July 23, 2009, the Court sentenced Petitioner to 510 months' imprisonment: 210 months for the robbery, followed by 300 months for the § 924(c) offense (Doc. 62). The Court ordered that Petitioner serve 500 months of his sentence consecutive to any existing state or federal sentence of imprisonment, with the remaining 10 months served concurrently (Id. at 2).

         Petitioner appealed, and the Sixth Circuit Court of Appeals affirmed his convictions but vacated his sentence and remanded for resentencing because, in its view, the record was unclear about whether this Court fully considered Petitioner's arguments for a fully concurrent sentence for the Hobbs Act robbery. United States v. Bugg, 483 F. App'x 166 (6th Cir. 2012). In November of 2012, the Court reimposed the same sentence (Doc. 91). Petitioner appealed again, and on September 13, 2013, the Sixth Circuit affirmed his sentence (Doc. 96); the Supreme Court subsequently denied his request for a writ of certiorari on January 14, 2014 (Doc. 99).

         On November 24, 2014, Petitioner submitted the instant timely petition to vacate, set aside, or correct his sentence (Doc. 100). On June 24, 2016, and June 27, 2016, respectively, Petitioner filed his first and second amended petitions (Docs. 112, 113). Both amended petitions contained a single timely request for collateral relief based on an intervening Supreme Court decision. ...


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