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Days v. United States

United States District Court, N.D. Georgia, Atlanta Division

May 23, 2019

DANIEL ALLEN DAYS, Fed. Reg. No. 70024-019, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE.

         Movant Daniel Allen Days has filed the instant pro se motion to vacate pursuant to 28 U.S.C. § 2255. (Doc. 37). Movant seeks to challenge the constitutionality of his conviction and sentence following his guilty plea in the Northern District of Georgia.

         I. Factual And Procedural History

         A. Procedural History

         On April 27, 2016, after being investigated and intercepted by the FBI for trafficking firearms from Atlanta to New Jersey, Movant was indicted by a federal grand jury for being an eight-time felon in possession of firearms, including two rifles, two pistols, and one shotgun in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 1; PSR ¶ 11). One of the rifles of which Movant had possession was capable of accepting a large capacity magazine. (PSR ¶¶ 8, 20). Movant entered a non-negotiated guilty plea on July 27, 2016. (Doc. 22).

         The statutory maximum for a § 922(g) offense is 120 months. See 18 U.S.C. § 924(a)(2); United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010). The PSR placed Movant at a total offense level of 26 and a criminal history category of VI, resulting in a sentencing range of 120-150 months. (PSR at 25, Part D). Prior to sentencing the Government filed a sentencing memorandum asking the Court to sentence Movant the statutory maximum of 120 months of imprisonment, and Movant's counsel filed a sentencing memorandum requesting a seventy-month sentence. (Docs. 25, 26). On October 25, 2016, U.S. District Judge Amy Totenberg sentenced Movant to 115 months of imprisonment with credit for time served to be followed by three years of supervised release. (Doc. 30). Movant did not file a direct appeal of his conviction and sentence.

         Movant filed the instant § 2255 motion on August 4, 2017, [1] and claims that counsel was ineffective because counsel:

(1) failed to investigate the law as it applied to Movant's prior conviction for family violence battery resulting in an increased base offense level within the plea agreement;
(2) failed to object to the Court's conclusion that Movant's prior family violence battery conviction was a crime of violence under the “force clause” of the Sentencing Guidelines, which falsely enhanced Movant's base offense level; and
(3) allowed Movant to forfeit his appellate rights and Movant thus could not appeal the categorization of his prior family violence battery conviction as a crime of violence which falsely enhanced his base offense level.

(Doc. 37).[2]

         For the following reasons, the undersigned RECOMMENDS that the instant § 2255 motion be DENIED.

         II. Standard of Review

         Congress enacted § 2255, authorizing convicted criminal defendants to file a motion to correct sentences that violate federal law, with the intention that the statute serve as the primary method of collateral attack on federally-imposed sentences. United States v. Jordan, 915 F.2d 622, 625 (11th Cir. 1990). Pursuant to § 2255, individuals sentenced by a federal court can attack the sentence imposed by claiming one of four different grounds: “(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 ...


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