United States District Court, S.D. Georgia, Savannah Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
an inmate at the Federal Correctional Institution in Jesup,
Georgia, has filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. The Court
REPORTS and RECOMMENDS the
§ 2255 motion be DENIED, this civil
action be CLOSED, and a final judgment be
ENTERED in favor of Respondent.
February 10, 2012, the grand jury in the Southern District of
Georgia charged Petitioner with distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (“Count
One”), distribution of controlled substances, in
violation of 21 U.S.C. § 841(a)(1) (“Count
Two”), unlicensed dealing in firearms, in violation of
18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D)
(“Count Three”), and four counts of felon in
possession of firearms, in violation of 18 U.S.C. §
922(g)(1) (“Counts Four-Seven”). United
States v. Morrell, CR 412-013, doc. no. 3 (S.D. Ga. Feb.
10, 2012) (hereinafter “CR 412-013”). The Court
appointed attorney Amy Lee Copeland to represent Petitioner.
Id., doc. no. 16.
Agreement to Plead Guilty
April 30, 2012, Petitioner pleaded guilty to Count Five.
Id., doc. nos. 27-28, 35, 50. The plea agreement
contained the following factual basis for the plea:
[O]n or about November 14, 2011, after being previously
convicted of three previous convictions for drug trafficking
offenses, the defendant knowingly possessed, in or affecting
interstate commerce, firearms, to wit:
1. American Derringer Corp., Model M-1, .45 Colt/.410X2.5
gauge pistol, Serial Number 110880;
2. Intratec, Model AB-10, 9mm semiautomatic pistol, Serial
3. Taurus, Model PT 24/7 OSS DS, .40 caliber semiautomatic
pistol, Serial Number SC014691; which before that time had
been transported in interstate or foreign commerce.
Id., doc. no. 35, pp. 4-5.
attested he had sufficient time to review his case with his
attorney, fully understood his rights and those he was giving
up by pleaing guilty, and voluntarily agreed to the plea
agreement. Id. at 7-8.
Change of Plea Hearing
the change of plea hearing, United States District Judge
William T. Moore, Jr., established Petitioner's
competence to enter a guilty plea if he desired.
Id., doc. no. 50, p. 18. Petitioner also testified
under oath he had adequate time to discuss his case with his
attorney and was entirely satisfied with the services
rendered by Ms. Copeland. Id. at 10-11. Judge Moore
read the indictment and asked if Petitioner understood the
charge therein. Id. at 11-13. Petitioner confirmed
he understood. Id. Judge Moore also explained the
rights Petitioner would be waiving by pleading guilty, and
Petitioner affirmed he understood those rights. Id.
the rights explained, Judge Moore reviewed the right to trial
by jury, the presumption of innocence, the government's
burden to prove guilt beyond a reasonable doubt, the right to
present and cross-examine witnesses, and the right to remain
silent. Id. Petitioner affirmed he had not been
pressured or promised anything to plead guilty, id.
at 16-17, 18-19, nor had anyone predicted Petitioner's
exact sentence. Id. at 17. Judge Moore specifically
asked Petitioner whether “anyone [had] done anything
that you consider to be wrong or unfair which has forced you
to plead guilty, ” to which Petitioner responded,
“No, sir.” Id. at 15-16. Judge Moore
found Petitioner's plea to be made voluntarily and with
an understanding of the charges and the plea's
consequences. Id. at 18-19.
Moore heard the factual basis for Petitioner's guilty
plea from Task Force Officer Daryle McCormick with Alcohol,
Tobacco, Firearms, and Explosives (ATF). Id. at 19.
Officer McCormick summarized the facts underlying
Petitioner's offense as follows:
[On November 14, 2011] agents was [sic] working in an
undercover capacity, and they made contact with [Petitioner].
[Petitioner] entered the store with a black bag containing
three firearms listed in the indictment, American Derringer,
Intratec Model AB-10, a Taurus Model PT .40 caliber pistol.
[Petitioner] negotiated a price with the undercover agent,
and at that time [$1, 600 in] undercover funds was exchanged
for the purchase of three firearms.
Id. at 19-20. Investigation revealed the firearms
had been shipped in interstate commerce, and Petitioner had
previously been convicted of possession with intent to
distribute marijuana and sale of marijuana in Chatham County
in 1999 and 2000. Id. at 20. Petitioner gave the
following account of the factual basis for his offense:
On [a]pproximately November the 11th - I think the 11th - the
14th, I entered the warehouse where the agents was at with a
black bag, and I sold them three firearms. I did wipe off the
gun before I hand it to them to keep my fingerprints off
Id. at 21.
Moore accepted the guilty plea, finding a sound factual basis
for it. Id. at 22.
Presentence Investigation Report (PSI)
United States Probation Office prepared a PSI, which set
Petitioner's base offense level at twenty-four. PSI
¶ 18. Petitioner's adjusted offense level was
thirty-three after enhancements of: (1) four levels because
the offense involved between eight and twenty-four firearms;
(2) one level because the offense involved a stolen firearm;
and (3) four levels because Petitioner engaged in trafficking
of firearms. PSI ¶¶ 19-21, 25. Although Petitioner
was only convicted of possessing three firearms, Petitioner
sold ATF agents eight firearms in total, and therefore the
probation officer attributed eight firearms to Petitioner for
offense calculation purposes. PSI ¶ 12. Petitioner's
adjusted offense level was decreased three points for
acceptance of responsibility, resulting in a total offense
level of thirty. PSI ¶¶ 28-30. Based on a total
offense level of thirty and a criminal history category of
VI, Petitioner's guideline imprisonment range was 168 to
210 months. PSI ¶ 59. However, because the statutory
minimum sentence under 18 U.S.C. §§ 922(g)(1) and
924(e) was fifteen years, the guideline range was 180 to 210
was held on August 17, 2012. CR 412-013, doc. nos. 36, 48.
Petitioner filed no objections to the PSI. PSI Addendum.
After hearing arguments from Ms. Copeland and Assistant
United States Attorney (“AUSA”) Cameron
Ippolitto, Judge Moore provided Petitioner with an
opportunity to make a personal statement. CR 412-013, doc.
no. 48, p. 6. Petitioner told Judge Moore,
Your Honor, first and foremost I stand in front of you today
because I made bad choices in life. I want you to know that I
take full responsibilities in all my actions that I took for
this case and all cases that I've been involved in. I
know right from wrong, but I chose the wrong route, and it
cost me my freedom. I'm not going to make excuses for
what I did or try to make sob stories, because then I'd
be playing with your intelligence.
Id. at 6-7.
Moore sentenced Petitioner to 195 months of incarceration,
five years of supervised release, and a $100.00 special
assessment. Id., doc. no. 36; doc. no. 48, pp. 7-11.
Final judgment was entered on August ...