United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR.UNITED STATES DISTRICT JUDGE.
the Court is Dante Hence's September 26, 2016 Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. (ECF No. 1.) The
United States (the “Government”) responded on
November 8, 2016. (ECF No. 6.) Hence replied on December 1,
2016. (ECF No. 7.)
following reasons, the Court DENIES Hence's motion and
DENIES a certificate of appealability (“COA”).
September 10, 2015, Hence pled guilty to receiving or
possessing a firearm not registered in the National Firearms
Registration and Transfer Record, in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871. (No. 15-cr-20131, ECF
sentencing, the Court determined that Hence's base
offense level was 18 because the offense involved a firearm
described in 26 U.S.C. § 5845(a). (Statement of Reasons
at 1.) The Court added four levels under U.S.S.G. §
2K2.1(b)(4)(B) because the firearm had an obliterated serial
number. (Id.) The Court added four more levels under
U.S.S.G. § 2K2.1(b)(6)(B) because Hence possessed the
firearm in connection with another felony offense.
(Id.) Hence's adjusted offense level was 26.
(Id.) The Court granted a full three-level reduction
for acceptance of responsibility, bringing Hence's total
offense level to 23. (Id.) With a criminal history
category of V, the Court calculated Hence's guideline
custody range to be 84 to 105 months. (Id.) The
Court sentenced Hence to 84 months in prison. (No.
15-cr-20131, ECF No. 36 at PageID 88.)
contends that his sentence is unlawful for two reasons.
First, he argues that the Court erroneously enhanced his
sentence under § 2K2.1(b)(6)(B) because the Court relied
on a dismissed felony. Second, he argues that, under
Johnson v. United States, 135 S.Ct. 2251 (2015), the
Court wrongly enhanced his sentence under § 2K2.1(a)(3)
for having a prior felony conviction of a crime of violence.
arguments are not well-taken.
a sentence enhancement under § 2K2.1(b)(6)(B) for
“us[ing] or possess[ing] any firearm or ammunition in
connection with another felony offense” does not
require a conviction. “[T]he term ‘another felony
offense' means ‘any federal, state, or local
offense, other than the explosive or firearms possession or
trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal
charge was brought, or a conviction obtained.”
United States v. Neal, 627 Fed.Appx. 543, 545 (6th
Cir. 2015) (quoting U.S.S.G. § 2K2.1(b)(6)(B) cmt. n.
14(C)) (emphasis added). At sentencing, the Court determined
that Hence committed aggravated assault with the firearm. The
sentence enhancement was properly applied.
the Court did not, as Hence asserts, rely on §
2K2.1(a)(3) to enhance his sentence. The Court declined to
adopt the Presentence Report's recommendation that
Hence's base offense level be enhanced under §
2K2.1(a)(3) for having previously committed a crime of
violence. The Court found that Hence's conviction for
facilitation of second-degree murder was not a crime of
arguments are without merit. His motion is DENIED.
Court must also decide whether to issue a certificate of
appealability (“COA”). No. § 2255 movant may
appeal without a COA. A COA may issue only if the movant has
made a substantial showing of the denial of a constitutional
right, and the COA must indicate the specific issue or issues
that satisfy the required showing. 28 U.S.C. §§
2253(c)(2) & (3). A “substantial showing” is
made when the movant demonstrates that “reasonable
jurists could debate whether (or, for that matter, agree
that) the [motion] should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).
case, there can be no question that Hence's claims are
meritless for the reasons previously stated. Because any
appeal by Hence on the issues raised in his motion ...