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United States v. McDaniel

United States District Court, D. South Carolina, Columbia Division

October 16, 2017

United States of America, Plaintiff,
v.
Warren Dominique McDaniel, Defendant.

          ORDER AND OPINION

         This matter is before the court on pro se Defendant Warren Dominique McDaniel's (“Defendant”) Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (ECF No. 49.) The United States of America (“Government”) filed a response in opposition to Defendant's Motion, and contemporaneously moved for summary judgment. (ECF Nos. 60, 61.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. Defendant has filed his response, and the matter is now ripe for resolution.

         A prisoner in federal custody under sentence of a federal court may petition the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255. The prisoner may be entitled to relief upon a showing: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; and (4) that the sentence is otherwise subject to collateral attack. Id. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. White v. United States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004) (citing Miller v. United States, 261 F.2d 546 (4th Cir. 1958)). In ruling on a § 2255 motion, the court may dismiss the motion without a hearing where “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings, that the moving party is not entitled to relief.” 28 U.S.C. § 2255(b) (noting that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief).

         The Government has also sought summary judgment on Defendant's claim in this case. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         After reviewing the parties' respective memoranda and the record of the underlying proceedings, the court determines that an evidentiary hearing is unnecessary. For the reasons set forth herein, the court DENIES Defendant's Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (ECF No. 49), and GRANTS the Government's Motion for Summary Judgment (ECF No. 61).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Evidence presented at the guilty plea hearing established that on July 22, 2010, officers with the Columbia Police Department executed a state search warrant at a Columbia residence following the controlled purchase of a small amount of marijuana from a male inside the residence. (ECF Nos. 38 at ¶¶ 7-15, 56 at 5-9, 59 at 18-22.) During a search of the residence, officers recovered a Romarm 7.62x39mm assault rifle with a 30-round high capacity magazine, a Taurus .45 caliber pistol, rounds of .45 caliber ammunition, a digital scale, a box of Ziploc bags, and a marijuana blunt. (Id.) Defendant, who lived at the residence at the time, admitted that the guns and marijuana belonged to him and that he bought the guns off the street because he was a felon. (Id.)

         Thereafter, on April 12, 2014, officers with the Lexington County Sherriff's Department responded to a shooting at a birthday party in Gaston, South Carolina and found that a 7-year-old female had been shot and killed and a 5-year-old male had been shot in the arm. (Id.) The investigation revealed that during the party, Defendant's girlfriend had unlocked the trunk of Defendant's vehicle to allow a child to retrieve a toy. (Id.) Unbeknownst to her, while looking for the toy, the child found a loaded FEG 7.62x39mm assault rifle with a 30-round high capacity magazine in the trunk of the vehicle and pulled the trigger, causing the rifle to fire while inside the trunk, striking the other two children who were standing outside the vehicle. (Id.) The investigation revealed that the FED firearm belonged to Defendant, who admitted, after waiving his rights, that he had purchased it off the street approximately 4 ½ years earlier, which would have been around the same time that the firearms were confiscated by law enforcement officials in 2010. (Id.) Defendant further admitted that he sold marijuana by the pounds and that he kept the gun for protection. (Id.)

         On June 17, 2014, a federal grand jury returned an Indictment charging Defendant with the following charges: Count 1 - felon in possession of firearms and ammunition on July 22, 2010; and Count 2 - felon in possession of a firearm and ammunition on April 12, 2014. (ECF No. 3.) Both counts were in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). (Id.)

         Defendant was arrested and made his initial appearance in federal court on July 1, 2014. (ECF Nos. 9, 10.) Assistant Federal Public Defender Allen Burnside was appointed to represent Defendant and Defendant was released on bond. (ECF Nos. 13, 15, 17, 19.)

         On October 21, 2014, Defendant entered a “straight up” guilty plea[1] to both counts of the Indictment before the court. (ECF Nos. 33, 34, 59.) A Presentence Investigation Report (“PSR”) was prepared and a sentencing hearing was held on February 23, 2015, before the court. (ECF No. 40.)

         Defendant faced a statutory maximum term of imprisonment of 10 years as to each count. (ECF No. 38 at ¶ 67.) Defendant's guidelines were calculated as follows: Defendant's base offense level was 22 due to the offenses involving semi-automatic firearms capable of acceptance of a large capacity magazine and Defendant's prior state felony conviction for possession with intent to distribute marijuana. (Id. at ¶ 41.) Defendant also received a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for the offenses involving at least 3, but less than 7 firearms. (Id. at ¶ 42.) Defendant also received a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for having the firearm in connection with another felony offense, specifically, the sale or distribution of marijuana. (Id. at ¶ 43.) That resulted in an adjusted offense level of 28. (Id. at ¶ 48.) Defendant received a three-level reduction for acceptance of responsibility. (Id. at ¶¶ 50-51.) Thus, Defendant's total offense level was a level 25, his criminal history category was IV due to his 9 criminal history points, and his resulting guideline range was 84 to 105 months imprisonment. (ECF Nos. 38 at ¶¶ 31, 52, 68; 43.)

         After considering the advisory guidelines and the factors of 18 U.S.C. § 3553(a), the court sentenced Defendant to a total term of imprisonment of 105 months with 3 years of supervised release. (ECF Nos. 42, 56 at 14-18, 58 at 14-18.) That sentence consisted of 105 months of imprisonment and 3 years of supervised release on Count 1, and 105 months of imprisonment and 3 years of supervised release as to Count 2, those terms to run concurrently. (Id.)

         Defendant did not file a direct appeal. (ECF No. 60 at 4.) On October 23, 2015, Defendant filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, asserting ineffective assistance of counsel. (ECF No. 49.) On December 18, 2015, the Government filed a response in opposition to Defendant's Motion, and contemporaneously moved for summary judgment. (ECF Nos. 60, 61.) On January 29, 2016, Defendant filed a response in opposition to the Government's Motion for Summary Judgment, asserting that there are genuine disputes of material fact as to whether there was mitigating evidence available, and whether counsel would have discovered such evidence with a thorough investigation. (ECF No. 64.)

         II. ...


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