United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
an inmate at Elkton Federal Correctional Institute in Lisbon,
Ohio, has filed with this Court a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
For the reasons set forth below, the Court REPORTS and
RECOMMENDS the § 2255 motion be DENIED without an
evidentiary hearing, this civil action be CLOSED, and a final
judgment be ENTERED in favor of Respondent.
Indictment and Trial
February 7, 2013, the grand jury in the Southern District of
Georgia charged Petitioner with one count of armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d),
and one count of using, carrying, and brandishing a firearm
during a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(ii). United States v. Nelson, CR
113-032, doc. no. 1 (S.D. Ga. Feb. 7, 2013) (hereinafter
“CR 113-032”). The Court appointed attorney John
B. Long under the Criminal Justice Act to represent
Petitioner. CR 113-032, doc. no. 12.
December 9-11, 2013, Petitioner's first trial ended in a
mistrial. See id., doc. nos. 66, 68, 71-72.
Petitioner was tried again on February 3-5, 2014. See
id., doc. nos. 103-105. The Eleventh Circuit provided
the following detailed description of the facts underlying
the offenses based on evidence introduced at this trial:
On January 5, 2013, Nelson entered a Wells Fargo bank in
Martinez, Georgia, carrying a duffel bag and wearing all
black, including a hood, a mask, gloves, and sunglasses.
Nelson brandished a fully loaded 9-millimeter pistol upon
entering the bank and demanded that the bank tellers load
money “with no dye packs” into his duffel bag.
After the bank tellers placed $2, 357 in cash in the bag,
along with a dye pack, Nelson fled the bank on foot into
Meanwhile, based on a silent alarm call from the bank, law
enforcement officers responded to the scene and established a
perimeter around the bank. Within minutes of the silent alarm
call, officers located and detained Nelson near the woods by
the bank. Nelson's 9-millimeter pistol and hands appeared
red from an apparent explosion of the dye pack.
From the woods near the bank, officers recovered Nelson's
duffel bag, which contained the money from the robbery
covered in red dye, a jacket doused in Clorox bleach, a fully
loaded magazine that fit the 9-millimeter pistol, and a mask.
Subsequently, law enforcement found Nelson's Mercury
Marquis parked across the street from the bank and learned
that Nelson purchased both the pistol and the mask within two
days before the robbery.
United States v. Nelson, 609 F.App'x 559, 561
(11th Cir. 2015).
close of deliberations during this second trial, the jury
found Petitioner guilty of both counts. CR 113-032, doc. no.
Petitioner's conviction, the United States Probation
Office prepared a Presentence Investigation Report
(“PSI”) which set Petitioner's Total Offense
Level at twenty-four, Criminal History Category at I, and
Guidelines imprisonment range at 51 to 63 months, plus an
eighty-four month consecutive sentence as to Count Two. PSI
¶ 53. Because Petitioner was convicted under 18 U.S.C.
§ 924(c)(1)(A)(ii), the statutorily required term of
imprisonment was at least seven years and not more than life,
and that term of imprisonment could not be served
concurrently with any other term of imprisonment imposed. PSI
¶¶ 51, 52. Therefore, his guideline range for the
brandishing charge was the statutory minimum-eighty-four
months consecutive to his sentence on Count One. PSI ¶
through counsel, filed three objections to the PSI.
See PSI Add. First, Petitioner contended that based
on the two mental health evaluations performed by the Bureau
of Prisons, he should have received a three-point reduction
for acceptance of responsibility and shouldnot have received
a two-point enhancement for obstruction of justice.
Id. Second, Petitioner objected to the information
in Paragraph 32, contending the underlying documentation
supporting this paragraph was never produced. Id.