United States District Court, N.D. Georgia, Atlanta Division
DANIEL ALLEN DAYS, Fed. Reg. No. 70024-019, Movant,
UNITED STATES OF AMERICA, Respondent.
MAGISTRATE JUDGE'S FINAL REPORT AND
S. ANAND UNITED STATES MAGISTRATE JUDGE.
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.
Factual And Procedural History
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).
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.
filed the instant § 2255 motion on August 4, 2017,
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
(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.
following reasons, the undersigned
RECOMMENDS that the instant § 2255
motion be DENIED.
Standard of Review
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 ...