Baker v. United States of America

Filing 2

ORDER directing the Court Reporter to file the sentencing transcript. Signed by Magistrate Judge G. R. Smith on 5/7/14. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MAURICE BAKER,

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Movant,

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UNITED STATES OF AMERICA,

Case No. CV414-059
CR413-066

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Respondent.

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ORDER
Following his 2013 conviction and 57-month sentence on gun
charges (violating 18 U.S.C. §§ 922(g) and 924(a)(2)), doe. 30, Maurice
Baker took no appeal (doe. 29; doe. doe. 32 at 2) but now moves for 28
U.S.C. § 2255 relief. CR413-066, doe. 32.1 He raises just one claim -"that his sentence was erroneously enhanced under U.S.S.G. §
2K2.1(b)(6) for allegedly possessing a firearm in connection with another
felony offense, to wit, aggravated assault, on or about [D]eeember 20,
2012." Id. at 2. The Court will now conduct a preliminary review under

The Court is citing only to the criminal docket and using its docketing software's
pagination; it may not always line up with each paper document's printed pagination.
1

the Rule 4(b) of the Rules Governing Proceedings under 28 U.S.C. §
2255.
Baker explains that while fleeing from an assailant who shot at
him, he returned fire in self-defense, the whole exchange was captured
on video, and the State declined to prosecute him. Doc. 32 at 3; see also
doe. 26 at 1-2 (his sentencing memorandum illuminating these facts).
But the U.S. Attorney pressed felon-in-possession gun charges against
him anyway. Doe. 32 at 3. He pled guilty to that, does. 27 & 30, but now
complains that this Court misapplied the federal sentencing guidelines in
assigning a four-level enhancement to his sentence based on his use of a
firearm with another felony offense. Doe. 32 at 2-7. He insists he did not
commit another felony offense, acted only in self-defense, and thus didn't
possess or use a firearm in connection with another felony offense.'
Hence, Baker concludes, this Court erred, thus entitling him to be
resentenced. Id. at 3-7.

Note that the phrase "in connection with" does not require proof that the firearm
actually facilitated the other felony offense. United States v. Pinckney, 444 F. App'x.
358 1 360 (11th Cir. 2011). "For instance, where it is reasonable to assume that a
defendant possesses a firearm, even without using it, to prevent the theft of
counterfeit currency in his possession, an enhancement is properly applied." United
States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001).
2

2

Normally, this claim would be procedurally defaulted since it was
not raised on appeal.' Baker can show cause for overcoming that default
by pleading and proving ineffective assistance of counsel (TAC). Brown v.

United States, 720 F.3d 1316 7 1333 (11th Cir. 2013); Guyton v. United
States, 447 F. App'x 136, 140 (11th Cir. 2011 (§ 2255 movant
procedurally barred from claiming that his due process rights were
violated by career offender enhancement at sentencing; he did not object
to it at sentencing nor raise it on direct appeal, nor did he establish
ineffective assistance to show cause for his procedural default); Geter v.

United States, 534 F. App'x 831, 836 (11th Cir. 2013) (no ineffectiveassistance-of-counsel cause shown to overcome procedural default on
career offender enhancement claim).

As the Eleventh Circuit explained:
A claim is procedurally defaulted, such that the prisoner cannot raise it in a
collateral proceeding, when a defendant could have raised an issue on direct
appeal but did not do so. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir.
2004). A claim is procedurally defaulted even if it was foreclosed explicitly by
existing circuit precedent at the time of the defendant's direct appeal. McCoy v.
United States, 266 F.3d 1245, 1258-59 (11th Cir.2001) (noting that perceived
futility does not constitute cause to excuse a procedural default).

Hill v. United States, 542 F. App'x 770, 771-72 (11th Cir. 2013). "Defendants can
avoid the procedural bar by establishing that either of the following exceptions
applies: (1) cause and prejudice, or (2) a miscarriage of justice based on actual
innocence." Id.
3

Baker is travelling that route by alleging that his lawyer was
"ineffective for failing to object to and/or appeal the erroneousenhancement.. . under U.S.S.G. §2K2.1(b)(6)." Doc. 32 at 7•4 He thus
must show that:
(1) counsel's performance was deficient, falling below an objective
standard of reasonableness, and (2) the movant suffered prejudice
as a result of the deficient performance. Strickland v. Washington,
466 U.S. 668, 687-88 2 104 S.Ct. 2052 2 2064, 80 L.Ed.2d 674 (1984).
The standard governing counsel's performance is "reasonableness
under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065.
In light of the strong presumption in favor of competence, a movant
seeking to prove a Sixth Amendment violation must establish that
"no competent counsel would have taken the action that his
counsel did take." Chandler v. United States, 218 F.3d 1305, 1315
(11th Cir.2000) (en banc).
Geter, 534 F. App'x at 836.
The Presentence Investigation Report (PSI) on Baker says that,
"[s]ince [Baker] used the firearm in connection with another felony
offense (aggravated assault), the offense level is increased by four levels,
pursuant to USSG §2K2.1(b)(6)(B)." PSI at 5. It also reports that Baker
encountered one Charles Mobley on a Savannah, Georgia street, that
Mobley fired at him and that Baker fired one round back. Id. at 4. That
Note that an ineffective assistance claim may be brought under § 2255 whether or
not a movant could have raised it on direct appeal. Massaro v. United States, 538
U.S. 500, 504 (2003); Cruz v. United States, 188 F. App'x 908, 910-11 (11th Cir.
2006).
4

much supports Baker's "self-defense" assertion. But the Probation
Officer also wrote in his Sentencing Recommendation that:
The shooting that is related to the instant offense was part of an
on-going dispute. The defendant went to Mobley's workplace,
armed. The circumstances of this case show that although Baker
fired only one round during the instant offense, his revolver was
found to contain six empty bullet casings. Therefore, it appears the
defendant may have been involved in previous criminal activity
prior to this shooting.
Sentencing Recommendation (not on the docket) at 1 (emphasis
added). The Officer also noted that Baker is a recidivist: "He has
served multiple periods of incarceration which have done little to
deter his criminal activity." Id. at 2. Finally a PSI Addendum notes
that Baker "has no objections to the [PSI]." PSI Addendum at 1.
While there is no sentencing hearing transcript in the record,
these documents undermine Baker's JAC claim. As noted, the
government need only show that the gun in a defendant's possession

could reasonably have been used for some other criminal purpose
(e.g., "to prevent the theft of counterfeit currency in his possession,"

Pinckney, 444 F. App'x. at 360). That apparently was presented to the
sentencing judge here, in which case it could not be said that Baker's

lawyer was Strickland-deficient.

The Court DIRECTS the Court

reporter to file the sentencing transcript so that this can be confirmed.
In Guyton, the movant sought to overcome his default by
arguing that he was "actually innocent" of his career offender
enhancement. Guyton, 447 F. App'x at 141. That argument failed,
however, "because a defendant cannot be 'convicted of being guilty of
the [career offender] enhancement.' Gilbert v. United States, 640 F.3d
1293, 1320 (11th Cir. 2011) (en banc) ('If guidelines enhancements
were crimes, they would have to be charged in the indictment and
proven to the jury beyond a reasonable doubt.')." Id. Baker does not
even raise that argument here, but to the extent it can be said that he
did,' it fails for the same reason.
SO ORDERED this 7day of May, 2014.

7Z/ 2Zi

UNITED'STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

He is proceeding pro Se, SO his pleadings must be construed liberally, though the
court cannot argue for him, nor compensate for abandoned claims.
Johnson v.
Razdan, 2014 WL 1689021 at * 2 (11th Cir. Apr. 30, 2014) ("Although pro se briefs
are to be construed liberally, a pro se litigant who offers no substantive argument on
an issue in his initial brief abandons that issue on appeal.").