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Futrell v. United States

United States District Court, W.D. Tennessee, Eastern Division

December 7, 2017

GARY FUTRELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE.

         Petitioner, 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.

         BACKGROUND

         In December 2012, a federal grand jury returned a four-count indictment against Futrell and others. (No. 12-cr-10131, D.E. 2.)[1] 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 PageID 5-8.)

         Futrell 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) (“U.S.S.G” or “guidelines”).[2] (PSR at ¶¶ 16, 33.)

         On 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 sentences.

         On 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.)

         DISCUSSION

         In his 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).

         According 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 Respondent.[3]

         Petitioner 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 the sentence.

28 U.S.C. § 2255(a).

         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 ...


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