Lorren v. USA
MEMORANDUM AND ORDER: For the foregoing reasons Lorren's § 2255 petition is dismissed in all respects except for the claim that his attorney failed to file an appeal. The case shall be set for evidentiary hearing on that issue alone, and new counsel will be appointed. Signed by District Judge Stephen N. Limbaugh, Jr on 6/9/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
BRYAN KEITH LORREN,
UNITED STATES OF AMERICA,
Case No. 1:14CV00183 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Bryan Keith Lorren, a person in federal custody. On
Septemeber 11, 2013, Lorren plead guilty before this Court to the offense of felon in
possession of a firearm and, on December 12, 2013, this Court sentenced Lorren to the
Bureau of Prisons for a term of 175 months. Lorren’s § 2255 motion, which is based on
several allegations of ineffective assistance of counsel, is fully briefed and ripe for
I. BASIS OF MOVANT’S PETITION
Lorren first contends that his trial counsel was ineffective for failing to file a
notice of appeal. For his second claim, Lorren contends that the government’s failure to
submit “Shepard approved documents” at sentencing “deprived him of a fair sentence”
and that the district court lacked authority to “enhance” his sentence under 18 U.S.C. §
924(e) based on convictions that had “solely been determined based on application of the
Presentence Report.” Also in his second ground, Lorren makes a vague claim that the
Eighth Circuit has “decriminalized” a state court suspended imposition of sentence, and
this somehow deprived the Court of its jurisdiction.
II. FACTS AND PROCEDURAL HISTORY
On February 28, 2013, a grand jury for the Southeastern Division of the Eastern
District of Missouri returned a one-count indictment charging that on or about October
29, 2012, the defendant committed the offense of being a previously convicted felon in
possession of a firearm in violation of Title 18, United States Code, Section 922(g)(1).
Admission of Guilt.
On or about September 11, 2013, the defendant and the government entered into a
written plea agreement. The plea agreement was signed by counsel for the government,
counsel for the defendant, and the defendant. The plea agreement contained the following
recitation of the facts, clearly establishing a factual basis for the plea:
On October 29, 2012, ATF Special Agent Ryan Becker and Kennett Police Officer
Brandon Moore made a stop of a GMC Jimmy being driven by this defendant. The
stop was made in Kennett, Missouri. They made the car stop because they had
received a tip from an informant that the Jimmy contained methamphetamine. At
the time of the stop, the defendant was driving, and he had a front seat passenger.
During the ensuing search of the Jimmy, the officers found three handguns. A
Jennings Model J-22 .22 caliber semi-automatic pistol, bearing serial number
156535, loaded with .22 caliber ammunition, was found between the front
passenger seat and the console, next to a small brown plastic container filled with
two baggies of methamphetamine. A .32 caliber Beretta Tomcat semi-automatic
pistol, serial number DAA411530, loaded with .32 caliber ammunition, was found
in a blue holster on the back floorboard on the passenger side. A RG Industries
Model RG26 .25 caliber semi-automatic pistol, serial number U906092, loaded
with .25 caliber ammunition, was found on the back floorboard on the passenger
The handguns were all test-fired. The .32 and the .22 functioned as designed, but
the .25 failed to fire. The Jennings pistol was manufactured in California. The
Beretta pistol was manufactured in Maryland. The RG pistol was manufactured in
At the time the defendant possessed the firearms and ammunition described above,
he was a previously-convicted felon, having been convicted of the following
felony offenses: (1) On or about September 19, 2008, in the Circuit Court of
Greene County, Arkansas, the defendant was convicted of the felony of delivery of
a controlled substance; (2) On or about September 19, 2008, in the Circuit Court
of Greene County, Arkansas, the defendant was convicted of the felony of delivery
of a controlled substance; and (3) On or about September 4, 2012, in the Circuit
Court of Greene County, Arkansas, the defendant was convicted of the felony of
possession of methamphetamine.
The language of the plea agreement fully advised movant of the possible range of
punishment and that he might be sentenced to under the provisions of 18 U.S.C. § 924(e)
to include a minimum term of imprisonment of fifteen years.
Possibility of Enhanced Criminal Status: In certain situations under Title 18,
United States Code, Section 924(e) (Armed Career Criminal), defendant may be
subject to a mandatory minimum sentence of fifteen (15) years and a maximum
sentence greater than described above. The defendant is pleading guilty with full
knowledge of these possibilities, has discussed these possibilities with counsel and
will not be able to withdraw the guilty plea if the Court determines the foregoing
statute applies to defendant’s sentence. However, both parties retain the right to
litigate whether Section 924(e) applies to defendant’s sentence.
Movant Was Advised of His Constitutional Rights.
The plea agreement further set forth in writing movant’s acknowledgment and full
understanding of the following rights:
In pleading guilty, the defendant acknowledges, fully understands and hereby
waives his rights, including but not limited to: the right to plead not guilty to the
charges; the right to be tried by a jury in a public and speedy trial; the right to file
pretrial motions, including motions to suppress or exclude evidence; the right at
such trial to a presumption of innocence; the right to require the government to
prove the elements of the offenses charged against the defendant beyond a
reasonable doubt; the right not to testify; the right not to present any evidence; the
right to be protected from compelled self-incrimination; the right at trial to
confront and cross-examine adverse witnesses; the right to testify and present
evidence and the right to compel the attendance of witnesses. The defendant
further understands that by this guilty plea, the defendant expressly waives all the
rights set forth in this paragraph.
The defendant fully understands that the defendant has the right to be represented
by counsel, and, if necessary, to have the Court appoint counsel at trial and at
every other stage of the proceeding. The defendant’s counsel has explained these
rights and the consequences of the waiver of these rights. The defendant fully
understands that, as a result of the guilty plea, no trial will, in fact, occur and that
the only action remaining to be taken in this case is the imposition of the sentence.
The defendant is fully satisfied with the representation received from defense
counsel. The defendant has reviewed the government’s evidence and discussed the
government’s case and all possible defenses and defense witnesses with defense
counsel. Defense counsel has completely and satisfactorily explored all areas
which the defendant has requested relative to the government’s case and any
Movant Stated He Was Fully Satisfied With His Attorney’s Representation.
The defendant expressed satisfaction with the way in which he had been
represented by counsel:
The defendant is fully satisfied with the representation received from defense
counsel. The defendant has reviewed the government's evidence and discussed the
government's case and all possible defenses and defense witnesses with defense
counsel. Defense counsel has completely and satisfactorily explored all areas
which the defendant has requested relative to the government's case and any
Movant Admitted He Had Not Been Threatened or Coerced and That He
Was In Fact Guilty of the Charged Conduct.
The defendant acknowledged that no person had, directly or indirectly, threatened
or coerced him to do or refrain from doing anything in connection with any aspect of this
case, including entering a plea of guilty. He further acknowledged that he has voluntarily
entered into both the plea and the guilty plea agreement. He stated that this guilty plea
was made of his own free will and he was in fact guilty of the conduct. (P.A. 9)
On September 11, 2013, Lorren entered a plea of guilty to the charge set forth in
the indictment. Lorren expressed satisfaction with the representation of his attorney. The
Court first advised Lorren that in a criminal case, he was entitled to effective
representation from a lawyer at each stage of the proceedings against him, and then asked
with that in mind, was he satisfied with the way his lawyer had handled his case. Lorren
stated, “Yes, sir.” (P.T. 4) Lorren acknowledged that he was satisfied with the manner in
which his attorney had investigated the case, that his attorney had done everything Mr.
Lorren had asked him to do, and that he had no gripes or complaints whatsoever. (P.T. 4)
Lorren acknowledged having signed the plea agreement and gone over it in detail with
his attorney. (P.T. 6) He stated he understood the contents in the agreement and there was
nothing in the plea agreement he did not understand. (P.T. 7) The Court reviewed with
the defendant that portion of the plea agreement which advised that he might be subject
to a mandatory minimum sentence of 15 years and that if the Court found him to be an
armed career criminal he would receive a minimum sentence of 15 years. (P.T. 10)
Lorren stated that he understood this and knowing that, he wished to enter a plea of
guilty. He acknowledged that no one had promised him what sentence he would receive
in the case. (P.T. 10-11)
The Presentence Report recommended that the base offense level should be set at
33 pursuant to U.S.S.G. § 4B1.4. (PSR 28) The Presentence Report noted that the
defendant was an armed career criminal and subject to the enhanced sentence under the
provisions of 18 U.S.C. § 924(e) because the offense of conviction was a violation of 18
U.S.C. § 922(g) and the defendant had at least three prior convictions for a violent felony
or a serious drug offense, or both, which were committed on different occasions. The
Presentence Report noted that the previous convictions included delivery of a controlled
substance in Case No. 2007-171, possession of methamphetamine with intent to deliver
in Case No. 2007-172, and delivery of a controlled substance in Case No. 2008-30.
Therefore, the report concluded that Lorren was an armed career criminal. (PSR 28) With
a three level adjustment for acceptance of responsibility, the final offense level was
recommended at 30. Lorren’s criminal history category was VI. (PSR 54) With a total
offense level of 30 and a criminal history category VI, the guideline imprisonment range
was 180-210 months. (PSR 81)
The defendant objected to the Presentence Report claiming that his 2007 Arkansas
conviction for delivery of a controlled substance in Case No. 2007-171 as detailed in
paragraph 35 of the Presentence Report, should not be a predicate offense for the armed
career criminal provision because he received a suspended imposition of sentence. In that
case, the Circuit Court of Green County, Arkansas sentenced Lorren to 72 months in the
Arkansas Department of Corrections but under the language of the Arkansas Court
“suspended imposition” of the sentence and placed him on 72 months’ probation. In
response to Lorren’s objection, the Probation Office maintained its position that the
conviction in paragraph 35 was a qualifying offense under the Armed Career Criminal
provision because, according to the Arkansas Criminal Code, Section 5-73-103, “. . . a
determination by a jury or court that a person committed a felony constitutes a conviction
. . . even though the court suspended the imposition of sentence and placed the defendant
on probation.” (PSR Addendum 12; Section 5-73-103 ACC) The report further concluded
that the Arkansas statute clearly provides that a suspended imposition of sentence
constitutes a conviction, unless the case was dismissed and expunged, or a pardon was
granted. As such, the Probation Office concluded that the conviction in paragraph 35 was
a predicate offense for armed career criminal purposes. (PSR Addendum 2)
The sentencing hearing was conducted on December 12, 2013. Mr. Lorren
acknowledged that he had gone over the Presentence Report with his attorney. (S.T. 2)
The Court asked if there were any objection, additions or corrections to the Presentence
Report, and the defense stated that other than the objection to the use of the one particular
Arkansas offense, there were no objections. (S.T. 3) The Court then entered as its
findings of fact, the factual statements that were set out in the Presentence Report, with
the exception of the specific objections that the defendant had filed. (S.T. 3)
The Court then took up the defendant’s claim that the Arkansas suspended
imposition of sentence should not count as a conviction for armed career criminal
purposes. The Court noted that the Government’s response was accurate in that the term
suspended imposition of sentence in Arkansas is altogether different than a suspended
imposition of sentence in Missouri. (S.T. 4) The Court noted that the defendant’s
objection was contrary to the established precedent of the Eighth Circuit and that the
motion was overruled. Indeed, the Eighth Circuit expressly held in United States v. Love,
59 Fed. Appx. 165, 2003 WL 145604 (unpublished), that an Arkansas suspended
imposition of sentence is a conviction for purposes of applying felon in possession
The Court also responded to movant’s reference to being surprised that he was
subject to a 15 year mandatory minimum as a career offender:
Alright. Now, before I go further, I want you and your client to understand that we
did cover the possibility of this enhanced criminal status at the plea hearing, and I
made clear that you may well be facing this mandatory minimum sentence of
fifteen years if it was determined as it is now that you had so many criminal
offenses that it makes you an armed career criminal. So it’s not like this was some
surprise that you suggested, perhaps.
Mr. Skrien then acknowledged that those matters had been discussed with his
client stating, “Well, we had those discussions, Your Honor. We just did not believe he
would fall on that side of it.” Mr. Lorren stated he was shocked that he was an armed
career criminal and that he had been told that he wasn’t an armed career criminal. (S.T. 9)
The Court then stated, “I want to clarify that, because, again at the sentencing – at the
plea hearing, we went over that possibility that you may well be an armed career
criminal.” The defendant responded, “Yes, sir.” (S.T. 9)
After hearing argument, the Court sentenced Mr. Lorre to a term of 175 months
imprisonment. This reflected an adjustment from the 180 month minimum sentence in
order to provide credit for the approximate five months that he had served previously.
Movant did not file a direct appeal.
III. APPLICABLE LAW
A. Need for Evidentiary Hearing.
When a petition is brought under 28 U.S.C. § 2255, the Movant bears the burden
of establishing the need for an evidentiary hearing. Evidentiary hearings on 28 U.S.C. §
2255 motions are preferred, and the general rule is that a hearing is necessary prior to the
motion’s disposition if a factual dispute exists. Thomas v. United States, 737 F.3d 1202,
1206 (8th Cir. 2013). This circuit has held that when the only information the court needs
to render a decision regarding a 2255 motion is contained in the record, there is no need
for an evidentiary hearing. Rogers v. United States, 990 F.2d 1008, 1009 (8th Cir. 1993).
An evidentiary hearing is unnecessary where the record conclusively shows the Movant
is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989); Dall
v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
In evaluating the need for an evidentiary hearing, the court must take many of the
movant’s factual averments to be true, but the court need not give weight to vague,
conclusory, and groundless allegations. United States v. Robinson, 64 F.3d 403, 405 (8th
Cir. 1995) citing Voytik v. United States, 778 F.2d 1306, 1309 (8th Cir. 1985). A Section
2255 motion can be dismissed without a hearing if (1) the petitioner’s allegations,
accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible or
conclusions rather than statements of fact. Delgado v. United States, 162 F.3d 981, 983
(8th Cir. 1998); Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013).
There is no requirement of a hearing where the claims are based solely on vague,
conclusory, or palpably incredible allegations or unsupported generalizations. Amos v.
Minnesota, 849 F.2d 1070, 1072 (8th Cir. 1988); Sidebottom v. Delo, 46 F.3d 744, 751
(8th Cir. 1995).
B. Effect of Guilty Plea.
When a guilty plea is delivered by the movant, the focus of a collateral attack must
remain limited to the nature of counsel's advice and the voluntariness of the plea. Bass v.
United States, 739 F.2d 405, 406 (8th Cir. 1984) citing Tollett v. Henderson, 411 U.S.
258, 266 (1973); United States v. Limley, 510 F.3d 825, 829 (8th Cir. 2007) (guilty plea
serves as a waiver for all non-jurisdictional defects that might be attacked in a 2255
motion). The Supreme Court has stated that a guilty plea operates as a break in the chain
of events of the criminal process. Tollett v. Henderson, 411 U.S. at 267. Once a criminal
defendant solemnly and openly professes his guilt before the court, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea. Id. Only the voluntary and intelligent character of the
guilty plea may be attacked. Id. Although the Tollett decision concerned state prisoner
habeas corpus petitions, the Eighth Circuit adopted and applied its rationale to motions
under section 2255. Bass v. United States, 739 F.2d at 406.
The general rule is that a valid guilty plea waives all non-jurisdictional defects.
Stated differently, a valid guilty plea forecloses an attack on a conviction unless “on the
face of the record the court had no power to enter the conviction or impose the sentence.”
Walker v. United States, 115 F.3d 603, 604 (8th Cir. 1997).
C. Issues Not Raised on Direct Appeal.
Claims which could have been raised on direct appeal and were not so raised are
not cognizable pursuant to 28 U.S.C. § 2255 unless the movant can show cause and
prejudice for his default in failing to raise the issue on direct appeal. Jennings v. United
States, 696 F.3d 759, 762 (8th Cir. 2012); Dyer v. United States, 23 F.3d 1421 (8th Cir.
1994); Thompson v. United States, 7 F.3d 1377, 1379 (8th Cir. 1993); Peltier v. Henman,
997 F.2d 461 (8th Cir. 1993). A § 2255 motion is not a substitute for a direct appeal.
Jennings, at 762; United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993).
Additionally, a movant’s pro se status does not excuse procedural default. Stewart v. Nix,
31 F.3d 741, 743 (8th Cir. 1994); Stanley v. Lockhart, 941 F.2d 707, 710 (8th Cir. 1991).
D. Guideline Application Issues.
Ordinary challenges regarding Sentencing Guideline issues are not cognizable
upon a Section 2255 motion. See Kitterman v. United States, 904 F.Supp. 987, 992 (E.D.
Missouri 1995). Section 2255 claims may provide relief for cases in which the sentence
was in excess of the maximum authorized by law. 28 U.S.C. § 2255; see United States v.
Wilson, 997 F.2d 429 (8th Cir. 1993). However, this provision has been held to apply “to
violations of statutes establishing maximum sentences, rather than garden-variety
Sentencing Guideline application issues.” Auman v. United States, 67 F.3d 157, 161 (8th
E. Ineffective Assistance of Counsel.
To prevail on a claim alleging ineffective assistance of counsel, movant must
satisfy the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 3562
(1984). Under Strickland, movant must first show that the counsel’s performance was
deficient. 466 U.S. at 687. This requires the movant to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. Secondly, movant must demonstrate that the deficient
performance prejudiced the defense so as “to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. This requires movant to show that “but for counsel’s
unprofessional errors, the results of the proceeding would have been different.” Id. at
694. The Eighth Circuit, applying the Strickland test, requires movant to show (1) that
counsel’s representation fell below an objective standard of reasonableness and (2) that,
but for this ineffective assistance of counsel, there is a reasonable probability that the
outcome of the trial would have been different. Rogers v. United States, 990 F.2d 1008,
1010 (8th Cir. 1993).
The standard to be used in a collateral charge of ineffective assistance of counsel
following a guilty plea is governed by Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366
(1985), which applies the holding of Strickland to instances involving guilty pleas. For
movant to be successful under Hill, movant is required to demonstrate first that
“[c]ounsel’s representations fell below an objective standard of reasonableness.” 474
U.S. at 57. A movant who pleads guilty upon advice from counsel may only contest the
voluntary and intelligent character of the plea by establishing that the advice given was
not within the range of professional competence required of the attorney in a criminal
case. Hill v. Lockhart, 474 U.S. at 56, citing Tollett v. Henderson, 411 at 258; Jones v.
Jerrison, 20 F.3d 849, 857 (1994).
Secondly, movant must show that “[b]ut for counsel’s errors, [the Movant] would
not have pleaded guilty and would have insisted on going to trial.” Id., at 59 (footnote
omitted); United States v. Prior, 107 F.3d 654, 661 (8th Cir. 1997). The Eighth Circuit,
applying this standard, has stated that movant must show that counsel’s performance fell
below an objective standard of reasonableness and that there is a reasonable probability
that, “but for counsel’s errors, movant would not have pleaded guilty and would have
insisted on going to trial.” Iron Wing v. United States, 34 F.3d 662, 664-665 (8th Cir.
1994), citing Hill v. Lockhart, 106 S.Ct. at 369-70; Forest v. Delo, 52 F.3d 716, 721-22
(8th Cir. 1995); United States v. Storey, 990 F.2d 1094, 1097 (8th Cir. 1993); United
States v. Davis, 508 F.3d 461, 463 (8th Cir. 2007).
Furthermore, failure to plead the second prong of the Strickland test, that “but for
counsel’s errors” movant would not have pleaded guilty, renders the petition causally
defective and entitles the government to a dismissal of the petition without the need for
an evidentiary hearing. United States v. C.W.E.H., 838 F.2d 993, 994 (8th Cir. 1988);
United States v. Runck, 817 F.2d 470, 471 (8th Cir. 1987).
When evaluating a counsel’s performance, the court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689; Forest v. Delo, 52 F.3d at 721. Judicial scrutiny
of a counsel’s performance remains highly deferential. Huls v. Lockhart, 958 F.2d 212,
214 (8th Cir. 1992) citing Johnson v. Lockhart, 921 F.2d 796, 799 (8th Cir. 1991). A
defendant “faces a heavy burden” to establish ineffective assistance of counsel pursuant
to Section 2255. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000).
In Yodprasit v. United States, 294 F.3d 966, 969 (8th Cir. 2002), the Eighth Circuit
concluded that a “counsel's failure to file a notice of appeal when so instructed by the
client constitutes ineffective assistance of counsel for the purpose of section 2255.” See
also, Estes v. United States, 883 F.2d 645, 648 (8th Cir.1989). An attorney’s failure to
file a notice of appeal upon the client’s request constitutes ineffective assistance of
counsel, and no specific showing of prejudice is required. United States v. Sellner, 773
F.3d 927, 930 (8th Cir. 2014). Even if the client waives his right to appeal as part of a
plea agreement, prejudice is presumed that the client asked his attorney to file a notice of
appeal and the attorney did not do so. Id. Nevertheless, for a petitioner to succeed, he
must show that he made his desire to appeal evident to his attorney. Barger v. United
States, 204 F.3d 1180, 1182 (8th Cir. 2000). “A bare assertion by the petitioner that [he]
made a request is not by itself sufficient to support a grant of relief, if evidence that the
fact-finder finds to be more credible indicates the contrary proposition.” Barger, 204 F.3d
at 1182 citing Rodriguez v. United States, 964 F.2d 840, 842 (8th Cir.1992) (per curiam).
In Holloway v. United States, 960 F.2d 1348 (8th Cir. 1992), the Eighth Circuit
found that failure of defendant’s counsel to file a notice of appeal was not “ineffective
assistance of counsel,” where defendant’s motion to vacate, files, and records of the case
showed conclusively that the defendant did not instruct his counsel to file an appeal. The
only instance in which Holloway claimed he wanted to appeal his case was in the
affidavit attached to his 2255 motion, which was inconsistent with all of Holloway’s
numerous other statements. Holloway, 960 F.2d at 1358. Since nothing in the record
agreed with, supported, or corroborated Holloway’s claim, the Eighth Circuit concluded
that “the fact that Holloway has managed to make a single, self-serving, selfcontradicting statement is insufficient to render the motion, files, and records of th[e]
case inconclusive on the question of whether Holloway instructed his counsel to appeal.”
Holloway, 960 F.2d at 1358.
A claim of ineffective assistance of counsel presents the court with a mixed
question of law and fact. The standard of review as for the district court’s factual findings
is clear error and de novo for the district court’s legal conclusions. Chandler v.
Armontrout, 940 F.2d 363, 365 (8th Cir. 1991).
A. INEFFECTIVE ASSISTANCE OF COUNSEL – FAILURE TO FILE
NOTICE OF APPEAL.
When the defendant avers under oath that he instructed trial counsel to file a notice
of appeal and that trial counsel failed to do so, as a general rule, an evidentiary hearing
may be required to determine the credibility of this allegation. Lorren states that “after
sentencing defendant requested and effectively instructed his attorney to file a notice of
appeal,” and none was filed. (§ 2255 Motion at 4)
Even though this is a singular self-serving statement, this case shall proceed to an
evidentiary hearing, because this Court is not permitted to make a credibility
determination on affidavits alone. Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir.
2013). This Court abuses its discretion when it credits the attorney’s affidavit over the
petitioner’s affidavit without first holding an evidentiary hearing. Franco v. United
States, 762 F.3d 761, 765 (8th Cir. 2014). Therefore, this matter will be set for an
evidentiary hearing where Lorren will have the opportunity to make this claim under
oath, subject to cross-examination, and subjected to the penalties of perjury.
B. FAILURE TO REQUIRE THE GOVERNMENT TO PROVIDE “SHEPARD
APPROVED” DOCUMENTS AT THE TIME OF SENTENCING.
Lorren contends the district court could not find that his 2007 conviction for
delivery of a controlled substance qualified as a prior conviction for 924(e) purposes
without the introduction of what he refers to as “Shepard” documents.
First, Lorren did not raise the issue on appeal and it is, therefore, not cognizable
under his § 2255 motion. Moreover, he did not even raise this issue at sentencing.
In order to excuse his default, Lorren would have to show both cause and
prejudice. There is no prejudice because (1) there has been no showing that “Shepard
documents” were admissible at the sentencing hearing; and (2) even if such documents
were admissible, there is no allegation of proof that these documents would have resulted
in the exclusion of the 2007 conviction.
To determine whether a past conviction qualifies as serious drug offense, the
courts apply the “categorical approach” under which they look only to the fact of
conviction and the statutory definition of the prior offense. United States v. Tucker, 740
F.3d 1177, 1179 (8th Cir. 2013), citing Taylor v. United States, 495 U.S. 575, 602, 110
S.Ct. 2143 (1990). However, where a statute of conviction sets out one or more elements
of the offense in the alternative, the statute is considered “divisible” for Armed Criminal
Career Act purposes. Taylor, 740 F.3d at 1179, citing Descamps v. United States, 570
U.S. --, 133 S.Ct. 2276, 2281 (2013). If one alternative of a divisible statute qualifies as a
violent felony, but another does not, courts apply the “modified categorical approach” to
determine under which portion of the statute the defendant was convicted. Tucker, 740
F.3d at 1179-80. The modified categorical approach permits sentencing courts to consult
a limited class of documents, often referred to as “Shepard approved documents,” such as
indictments and jury instructions, to determine which alternative formed the basis of the
defendant’s prior conviction. Tucker, 740 F.3d at 1180; Descamps, 133 S.Ct. 2276 at
Sentencing courts may not apply the modified categorical approach when the
crime of which the defendant was convicted has a single, indivisible set of elements.
United States v. Bankhead, No. 12-4009, 2014 WL 539754, *2 (8th Cir. Feb. 12, 2014),
citing Descamps, 133 S.Ct. at 2282. Lorren does not allege the statute underlying his
conviction was a divisible statute. Indeed, it was not. The Arkansas statute prohibiting
delivery of methamphetamine is not a divisible statute, providing only that: “Except as
provided by this chapter, it is unlawful for a person to deliver methamphetamine.” AR ST
5-64-422(a). Since the statute is non-divisible, the modified categorical approach is not
permitted. Thus, no “Shepard approved” documents could have been admitted, and
Lorren cannot show he was prejudiced by the fact they were not offered at his sentencing.
C. USE OF LORREN’S ARKANSAS SUSPENDED IMPOSITION OF
SENTENCE AS A CONVICTION FOR ARMED CAREER CRIMINAL
Lorren contends the district court abused its discretion by considering his 2007
Arkansas conviction for delivery of a controlled substance as a prior felony conviction
under 18 U.S.C. § 924(e). This issue could have been raised on direct appeal and was not.
Therefore, the issue is waived and is not cognizable in a § 2255 motion. For this reason
alone, this point must fail. Furthermore, prejudice could never be established because an
Arkansas suspended imposition of sentence is a conviction for 924(e) purposes, just as
the trial court ruled. See United States v. Love, 59 Fed. Appx. 165, 2003 WL 145604
Lorren’s reliance on United States v. Thornton, 766 F.3d 875 (8th Cir. 2014), is
misplaced. Thornton recognized that a Missouri “suspended imposition of sentence” is
not a conviction for 924(e) purposes. However, Lorren’s “suspended imposition of
sentence” was under Arkansas law. What constitutes a conviction for purposes of
applying federal felon in possession laws “shall be determined in accordance with the law
of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20). Under
Arkansas law, a “suspended imposition” is a conviction for purposes of applying 18
U.S.C. § 924(e). Love, 59 Fed. Appx. 165, 2003 WL 145604 (unpublished).
Accordingly, even if this claim were cognizable under 28 U.S.C. § 2255, the claim
simply has no merit.
For the foregoing reasons Lorren’s § 2255 petition is dismissed in all respects
except for the claim that his attorney failed to file an appeal. The case shall be set for
evidentiary hearing on that issue alone, and new counsel will be appointed.
SO ORDERED this 9th day of June, 2015.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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