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Nelson v. United States

United States District Court, S.D. Georgia, Augusta Division

March 7, 2017

ANDREW GARETH NELSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         I. BACKGROUND

         A. Indictment and Trial

         On 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.

         On 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 nearby woods.
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).

         At the close of deliberations during this second trial, the jury found Petitioner guilty of both counts. CR 113-032, doc. no. 106.

         B. Sentencing

         Upon 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 ¶ 60.

         Petitioner, 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. ...


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