United States District Court, M.D. Georgia, Columbus Division
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
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
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.
a four-day jury trial, Jones was found guilty of Counts One,
Two, and Three, and not guilty of Count Four. Verdict, ECF
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).
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].”
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.
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.
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.
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.
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
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.
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. 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.
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.
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.
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.
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