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Jones v. United States

United States District Court, M.D. Georgia, Columbus Division

July 10, 2019

WILLIAM DILMUS JONES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are William Dilmus Jones's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and Amended Motion to Vacate Conviction Under 28 U.S.C. § 2255. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 112; Am. Mot. to Vacate Conviction Under 28 U.S.C. § 2255, ECF No. 124. For the reasons discussed below, it is recommended that Jones be granted § 2255 relief and an evidentiary hearing being denied.

         I. BACKGROUND

         On June 11, 2013, a grand jury indicted Jones for conspiracy to possess methamphetamine with intent to distribute (Count One), possession of a firearm by a convicted felon (Count Two), possession of methamphetamine with intent to distribute (Count Three), and possession of a firearm in furtherance of a drug trafficking crime (Count Four). Superseding Indictment, ECF No. 32. In relation to Count Two, the Superseding Indictment listed three prior convictions:

(1) the offense of Robbery in Docket No. 339128 in the 176th Judicial District Court of Harris County, Texas on December 21, 1981;
(2) the offense of Aggravated Assault in Criminal No. SU-93CR2606-3 in the Superior Court of Muscogee County, Georgia on October 31, 1994;
(3) the offense of Possession With Intent to Distribute Methamphetamine, Use of a Firearm During a Drug Trafficking Crime, and Possession of a Firearm by a Convicted Felon in Criminal No. CR 94-1-001-CDL in the United States District Court for the Middle District of Georgia on July 13, 1994.

Superseding Indictment at 3-4, ECF No. 32.

         Following a four-day jury trial, Jones was found guilty of Counts One, Two, and Three, and not guilty of Count Four. Verdict, ECF No. 80.

         The United States Probation Office (“Probation”) issued its final presentence investigation report (“PSR”) on April 21, 2014. PSR, ECF No. 90. In relation to Count Two, Probation determined the base level offense was twenty-four pursuant to USSG § 2K2.1(a)(2) (2013), which provides that “the base offense level for a defendant who committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense shall be [twenty-four].” PSR at 9, ECF No. 90. This provision applied because Jones “has two prior felony convictions for Possession with Intent to Distribute Methamphetamine and Possession of Firearm During Commission of Drug Trafficking Offense, U.S. District Court case number 4:94-CR-1-001, and Aggravated Assault, Muscogee County, Georgia Superior Court case number SU93CR2606.” Id. Noting that seventeen firearms were found in Jones's bedroom, Probation added four levels because the offense involved between eight and twenty-four firearms. Id.; USSG2K2.1(b)(1)(B)). Because three of the firearms had been reported stolen, Probation added two more levels. Id.; U.S.S.G. 2K2.1(b)(4)(A). While these total thirty, the Sentencing Guidelines provide that when applying U.S.S.G. § 2K2.1(b)(1) through (b)(4), the cumulative offense level may not exceed twenty-nine. Id; U.S.S.G. 2K2.1(b).

         Counts One and Three were controlled substance offenses. PSR at 10, ECF No. 90. Plus, Jones had at least “two prior felony convictions for a controlled substance offense and crimes of violence.” Id. Jones was, therefore, subject to sentence enhancement under U.S.S.G. § 4B1.1(a) and (b). Id. This resulted in a “higher career offender table offense level of [thirty-two].” Id.

         Probation also classified Jones as a career offender under the Armed Career Criminal Act (“ACCA”). Id.; 18 U.S.C. § 924(e). Probation maintained this classification was appropriate because Jones committed his 18 U.S.C.§ 922(g)(1) offense (Count Two), after having been convicted for three violent felony offenses or serious drug offenses committed on three separate occasions. Id. Based on the Armed Career Criminal Guidelines, Jones's offense level was ultimately thirty-three. Id.

         Probation documented Jones's lengthy criminal history. PSR at 11, ECF No. 90. Jones had five unscored criminal convictions. PSR at 11-15; ECF No. 90. He had three scored convictions. PSR at 12-15, ECF No. 90. The first scored conviction followed his October 20, 1993, arrest. PSR at 12-13, ECF No. 90. On June 30, 1994, Jones was convicted in the United States District Court, Middle District of Georgia, Columbus Division, in case number 4:94-CR-1-001, of possession with intent to distribute methamphetamine, possession of a firearm during the commission of a drug trafficking offense, and possession of a firearm by a convicted felon. Id. He was sentenced to a total of 138 months' imprisonment following by three years' supervised release. Id. Probation added three criminal history points for this conviction. Id.

         The second scored conviction occurred on October 31, 1994, and arose from events that occurred when law enforcement sought to arrest Jones on October 20, 1993. PSR at 13-14, ECF No. 90. Jones was convicted in the Superior Court of Muscogee County, Georgia, in case number SU09CR2651, of two counts of aggravated assault, reckless driving, two counts of leaving the scene of an accident, fleeing to elude police officers, and crossing guard lines with marijuana. Id. The court imposed a ten-year sentence to run concurrently with the federal sentence in 4:94-CR-1-001. Id. Probation added three criminal history points for this conviction. Id.

         The third scored conviction was a June 9, 2011, conviction in the Lee County District Court in Opelika, Alabama. PSR at 15, ECF No. 90. Jones was convicted of second-degree possession of marijuana, pistol without a permit, and attempting to elude police in case numbers DC-10-2261, 2261, 2263. PSR at 15, ECF No. 90. He was sentenced to serve one year in prison. Id. Probation added two criminal history points for this conviction. Id.

         With eight criminal history points, Jones's criminal history category was IV. PSR at 15, ECF No. 90. However, because Jones was a career offender his criminal history category was VI. Id.

         With an Armed Career Criminal total offense level of thirty-three and a criminal history category of VI, Jones's Guidelines range was 235 to 293 months' imprisonment. PSR at 22, ECF No. 90. Probation noted that the “minimum term of imprisonment” for Count Two was fifteen years and the maximum was life. Id.

         Trial counsel made no written objections to the PSR. But, at the April 29, 2014, sentencing hearing, he objected to the Armed Career Offender classification. Sentencing Hr'g at 4, ECF No. 108. He argued that the 1994 state court conviction for aggravated assault arose because Jones fled from law enforcement on October 20, 1993, when they tried to arrest him for the drug charges for which he was convicted in the United States District Court, Middle District of Georgia, Columbus Division, in case number 4:94-CR-1-001, on June 30, 1994.[1] He argued that the federal and state convictions “should be treated as basically one event.” Sentencing Hr'g at 5, ECF No. 108. The Court overruled the objection, finding the convictions should be treated as two separate offenses. Sentencing Hr'g at 7, ECF No. 108. The Court imposed a sentence of 293 months based on Jones's criminal conduct and his substantial criminal history. Sentencing Hr'g at 14, ECF No. 108.

         Jones filed a direct appeal on May 12, 2014. Notice of Appeal, ECF No. 97. He raised one argument: “The district court erred in denying his motion to dismiss the indictment, because the delay before trial violated his right to due process and his right to a speedy trial under the Sixth Amendment.” United States v. Jones, 592 Fed.Appx. 920, 921 (11th Cir. 2015) (per curiam). On February 18, 2015, the Eleventh Circuit affirmed the District Court and denied relief. Id. The Eleventh Circuit entered judgment on that same day. United States v. Jones, No. 14-12094 (11th Cir. Feb. 18, 2015). It does not appear that Jones filed a petition for certiorari with the United States Supreme Court. The Eleventh Circuit's mandate issued on March 19, 2015. Mandate, ECF No. 111.

         Jones's pro se 28 U.S.C. § 2255 motion was dated June 8, 2016, and filed in this Court June 14, 2015. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 112. The Court appointed counsel to represent Jones and ordered that an amended § 2255 motion be filed. Orders, ECF Nos. 117; 121; 123. On June 15, 2017, appointed counsel filed an amended § 2255 motion in which she argued that Jones's “conviction under 18 U.S.C. § 924(e), must be vacated and therefore, his sentence must be reduced in light of the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015).” Am. Mot. to Vacate Conviction Under 28 U.S.C. § 2255 at 1, ECF No. 124. The amended § 2255 motion also shows that Jones “continues to assert the grounds enumerated in his initial petition.” Id. at 9.

         On January 8, 2019, the United States Magistrate Judge ordered the parties to brief whether Jones's December 21, 1981, conviction in Texas state court for robbery still qualifies as a predicate offense under the ACCA. Order, ECF No. 129. Both parties briefed that issue. Gov't Suppl. Resp. to the Def's Mot. Pursuant to 28 U.S.C. § 2255, ECF No. 130; Suppl. Br., ECF No. 131; Pet'r Resp. to Gov't Suppl. Br., ECF No. 132.

         On April 2, 2019, the United States Magistrate Judge filed a Report and Recommendation recommending denial of Jones's § 2255 motion. R. & R., ECF No. 133. On April 4, 2019, the Eleventh Circuit decided United States v. Moss, 920 F.3d 752 (11th Cir. 2019). In Moss, the court held that for a conviction to qualify as a ...


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