United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
DANIEL BREEN, UNITED STATES DISTRICT JUDGE.
Gary Futrell, a federal prisoner, has filed a motion under 28
U.S.C. § 2255 asking the Court to vacate, set aside, or
correct his sentence (“Petition”). (Case Number
(“No.”) 15-cv-1041, Docket Entry
(“D.E.”) 1.) He claims that his sentence was
based on a miscalculation of his criminal history points.
(Id. at PageID 2.) For the reasons set forth below,
the Petition is DISMISSED.
December 2012, a federal grand jury returned a four-count
indictment against Futrell and others. (No. 12-cr-10131, D.E.
The indictment charged Petitioner with Conspiracy to
Manufacture a Mixture and Substance Containing a Detectable
Amount of Methamphetamine in violation of 21 U.S.C. §
841(a)(1) and § 846 (Count 1); Aiding and Abetting the
Manufacture of a Mixture and Substance Containing a
Detectable Amount of Methamphetamine in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2);
Aiding and Abetting the Possession of Pseudoephedrine with
the Intent to Manufacture Methamphetamine in violation of 21
U.S.C. § 841(c) and 18 U.S.C. § 2 (Count 3); and
Aiding and Abetting the Possession of Equipment, Chemicals,
Products, and Materials with the Intent to Manufacture
Methamphetamine in violation of 21 U.S.C. § 843(a)(6)
and 18 U.S.C. § 2 (Count 4). (Id., D.E. 2 at
entered a guilty plea to all four counts of the indictment
without the benefit of a plea agreement. (Id., D.E.
126.) The United States Probation Office prepared a
Presentence Report (“PSR”) in which two points
were added to the defendant's criminal history score
pursuant to the United States Sentencing Commission,
Guidelines Manual, § 4A1.1(d) (Nov. 2013)
“guidelines”). (PSR at ¶¶ 16, 33.)
February 26, 2014, the Court sentenced the defendant to 135
months of incarceration on each of Counts 1, 2, and 3 of the
indictment, to run concurrently, and imposed a concurrent
120-month sentence on Count 4. (No. 12-cr-10131, D.E. 149.)
Petitioner took no appeal from his judgment of conviction or
February 26, 2015, the defendant filed his Petition with this
Court, asserting a single ground for relief. (D.E. 1 at
PageID 2.) The government filed a response opposing the
Petition. (D.E. 5.) Futrell did not file a reply, although he
was allowed to do so. (D.E. 4.)
sole claim, Petitioner alleges that his sentence is based on
an incorrect calculation of his criminal history points.
(D.E. 1 at PageID 2.) Specifically, he insists that U.S.S.G.
§ 4A1.1(d) does not apply to him. (D.E. 1-2 at PageID
11-12.) That guideline provision provides for a two-point
enhancement in a defendant's criminal history score
“if the defendant committed the instant offense while
under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or
escape status.” U.S.S.G. § 4A 1.1(d).
to Futrell, he did not, as the PSR stated, (PSR at ¶
33), commit the federal offenses while on probation from a
Carroll County criminal conviction for possession of
controlled substances. (D.E. 1-2 at PageID 12.) He alleges
that “[t]he federal offense[s] . . . w[ere] committed
on October 9, 2012, ” but his 11-month and 29-day
period of probation was imposed on October 28, 2010, and
expired on October 27, 2011. (Id.) Respondent argues
that the claim is not cognizable and that, in any event, the
underlying allegation of miscalculation is without merit.
(D.E. 5 at PageID 21-23.) The Court agrees with
seeks resentencing pursuant to 28 U.S.C. § 2255(a). The
statute reads as follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
prisoner seeking to vacate his sentence under § 2255
“must allege either: ‘(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.'” Short v. UnitedStates, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). The petitioner has the burden of proving that ...