Warren v. USA

Filing 11

MEMORANDUM AND ORDER.. this Court denies Warren's § 2255 petition, without a hearing. IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Warren has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 9/10/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARTINEZ WARREN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:15CV00091 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 Martinez Warren, a person in federal custody. On July 21,
2014, Warren plead guilty before this Court to the offense of aiding and abetting the
burglary of a pharmacy and aiding and abetting the possession with intent to distribute
controlled substances and, on December 1, 2014, this Court sentenced Warren to the
Bureau of Prisons for a term of 81 months. Warren’s § 2255 motion, which is based on
several allegations of ineffective assistance of counsel, is fully briefed and ripe for
disposition.
FACTS
A. The Indictment.
On March 20, 2014, a Grand Jury in the Eastern District of Missouri, Southeastern
Division, returned a two-count Indictment against Martinez M. Warren. Count I of the
Indictment charged that on or about January 12, 2014, Warren, aided and abetted by his
co-defendants, committed the crime of Aiding and Abetting the Burglary of a Pharmacy

in violation of Title 18, United States Code, Section 2118(b) and (c)(1) and Title 18,
United States Code, Section 2. Count II of the Indictment charged that Warren, aided and
abetted by his co-defendants, committed the crime of Aiding and Abetting the Possession
of Controlled Substances With the Intent to Distribute in violation of Title 21, United
States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. On March 27,
2014, Warren made his initial appearance on the federal charges. After the initial
appearance, Jacob Zimmerman was appointed to represent Warren. Warren was arraigned
on April 1, 2014. At that arraignment, Warren pled not guilty to the charges.
B. Pretrial Motions.
On April 21, 2014, Warren’s attorney filed a Waiver of Filing of Pretrial Motions.
In that Waiver, Warren’s attorney represented that his client did not want to file any
pretrial motions. On May 1, 2014, Warren appeared before United States Magistrate
Judge Abbie Crites-Leoni and formally waived his right to file pretrial motions. His case
was set for trial or plea on June 23, 2014. Warren’s attorney filed a motion to continue
that trial/plea hearing. That motion was granted and Warren’s trial/plea hearing was reset
for July 21, 2014.
C. Plea Agreement.
The parties signed a written plea agreement that set out the terms and conditions of
Warren’s guilty plea to the charges. The Government agreed that, in exchange for
Warren’s guilty plea to the charges, the Government would not charge Warren with any
further charges related to the burglary of Davis Pharmacy on January 12, 2014. The
parties also agreed:
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The parties further agree that either party may request a sentence above or below
the U.S. Sentencing Guidelines range (combination of Total Offense Level and
Criminal History Category) ultimately determined by the Court pursuant to any
chapter of the Guidelines and Title 18, United States Code, Section 3553(a). The
parties further agree that notice of any such request will be given no later than
ten days prior to sentencing and that said notice shall specify the legal and factual
bases for the request.
Plea Stip., p. 2.
The Plea Agreement contained an agreed-upon Statement of Facts as to Warren’s
offense conduct:
On January 12, 2014, at around 2:46 a.m., Craig Nelson and his wife, Cynthia
Nelson, were asleep in their home on Mott Street in New Madrid, Missouri. They
were startled from their sleep by the sound of a car door slamming and their dog
barking. The Nelsons looked out of one of their windows and saw a silver Buick
vehicle backed up to the front door of Davis Pharmacy. Two men were out of the
car. One of the men broke the glass out of the front door. Both of those men
entered the pharmacy. A third person was seated in the Buick. Mrs. Nelson called
the New Madrid police department to report the burglary.
After a few minutes, the two men came out of the pharmacy, carrying large duffel
bags. They got in the Buick, which drove off the parking lot. The Nelsons saw a
New Madrid police vehicle arrive at the parking lot just behind the Buick. Officer
John Dubois was driving the New Madrid police vehicle. He began chasing after
the Buick. Other officers were called to the chase, which continued to Highway 55
and onto side roads. During the chase, the occupants of the Buick began throwing
items out of the Buick. The officers later recovered some of those items, which
included medications stolen from Davis Pharmacy, clothing and a wood maul.
The officers were able to get two of their patrol cars in front of the Buick. The
driver of the Buick attempted to ram the Buick into the officers’ cars, putting the
lives of the officers at risk. The officers managed to evade the Buick. The chase
continued for several miles until the officers began shooting at the Buick with
their firearms. The Buick then turned into the Pilot Truck Stop parking lot and
stopped. Officers arrived and arrested the occupants of the Buick. Those occupants
were Troy D. Stephenson, Billy G. Biggs and Martinez M. Warren. The Buick was
a rental vehicle that had been driven by Stephenson, Biggs and Warren from their
homes in Memphis, Tennessee, that same day as the burglary.

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Davis Pharmacy employees examined the store and determined that $27,243.66 in
prescription medications had been stolen. Those stolen medications included
oxycodone, hydrocodone and morphine. The total amount of drugs stolen
amounted to $27,243.66. Repairs to the Davis Pharmacy building totaled $815.62.
Davis Pharmacy is a pharmacy that was registered with the Drug Enforcement
Administration under Section 302 of the Controlled Substances Act.
The employees determined that only selected medications were taken. The
medications taken by Stephenson, Biggs and Warren are commonly sold illegally.
Officers reviewed the types of medications taken by Stephenson, Biggs and
Warren and came to the opinion that the three men took the medications in order
to distribute them to others for cash or other consideration and that the
medications were not to be used for their personal use.
The location of the burglary of Davis Pharmacy by the defendant was in New
Madrid County, Missouri, within the Eastern District of Missouri.
Plea Stip., pp. 3 – 5.
The parties did not reach any agreement as to Guideline Offense Levels, except
that Warren was to receive a reduction of three levels for timely acceptance of
responsibility. The parties did not come to any agreement as to Warren’s Criminal
History Category. (Plea Stip., p. 6)
Warren and the Government agreed to waive their rights to appeal any withinGuidelines’ range sentence. Warren reserved the right to appeal any sentence imposed
above the Guidelines range. The Government reserved the right to appeal any sentence
imposed below the Guideline range. (Plea Stip., p. 7) Warren agreed to waive his right to
file a petition pursuant to Title 26, United States Code, Section 2255, except for claims of
prosecutorial misconduct or ineffective assistance of counsel. (Plea Stip., p. 7)
D. The Plea Hearing:

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On July 21, 2014, this Court conducted a plea hearing in this case. Warren
appeared with his attorney. Warren was sworn and answered questions put to him by this
Court. Warren stated that he had no complaints concerning his attorney and was satisfied
with the way his attorney had handled his case. (Plea Tr., p. 6)
Warren stated that he had reviewed the written Plea Agreement and that his
attorney had gone over it in detail with him. (Plea Tr., p. 7) Warren agreed that he
understood that his sentence would be influenced by the advisory Sentencing Guidelines,
but that the eventual sentence would be up to this Court. (Plea Tr., pp. 10 – 11) Warren
understood that the range of punishment for Count I was a term of imprisonment up to
twenty five years and for Count II, the range of imprisonment was up to twenty years.
Warren understood that this Court would consider the full range of punishment. (Plea Tr.,
pp. 10 – 11)
The Government recited the facts of the case that were set out in the written Plea
Agreement. (Plea Tr., pp. 12 – 14) Warren agreed that the Statement of Facts was true
and correct. (Plea Tr., p. 15) Warren admitted that he committed each and every element
of both offenses. (Plea Tr., pp. 15 – 16) Warren then pled guilty to Counts I and II of the
Indictment. (Plea Tr., p. 16) A sentencing hearing was set for Warren for December 15,
2014.
E. The Presentence Investigation Report.
A Presentence Investigation Report (P.S.R.) was prepared by United States
Probation Officer Sherry L. Persinger. That report recommended that Warren’s base
offense level be set at 24, pursuant to U.S.S.G., § 2D1.1(a)(5), due to the drug quantity
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involved in this case (P.S.R., ¶ 26) The P.S.R. recommended that six levels be added for
an assault on a law enforcement officer during the commission of the offense or
immediate flight from that offense, pursuant to U.S.S.G., § 3A1.2(c)(1). Two levels were
added for creating a substantial risk of death or serious bodily injury during the flight
from the crime, pursuant to U.S.S.G., § 3C1.2. (P.S.R., ¶ 30) With three levels of a
reduction for acceptance of responsibility, Warren’s Total Offense Level was 29. (P.S.R.,
¶ 35)
Warren’s criminal history was remarkable and is set out below. Warren’s first
brush with a criminal violation occurred when he was a juvenile at age 14. At that time,
he was adjudicated as a minor who was in possession of cocaine. The offense occurred
when Warren attempted to pass cocaine to another student in a class. No criminal history
points were assessed to this adjudication. (PSR, p. 8, 9)
At age 16, Warren received another juvenile adjudication, but this time for a much
more serious offense. Warren’s cousin was involved in a verbal altercation with another
person. The cousin informed Warren of the argument and pointed out the other person to
Warren. Warren then shot the other person with a firearm. Warren was placed in a youth
center in Tennessee for this violation. He was released to his parents on June 26, 1993.
No criminal history points were assessed for this violation. (PSR, p. 9)
Less than one year after being released to his parents, Warren committed a
Robbery offense by carjacking a vehicle from another person. Warren was 17 years old at
this time. He was certified and convicted as an adult for this offense. His sentence was six
years imprisonment, but that sentence was suspended and Warren was ordered to serve
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one year of probation. That probation was revoked on February 14, 1996, with Warren
being ordered to serve 9 months of imprisonment, but only by serving it on weekends, to
be followed by one year of probation. On February 4, 1997, his weekend privileges were
revoked and he was ordered to serve 9 months imprisonment. Again, Warren did not
receive any criminal history points for this crime. (PSR, p. 10)
At age 20, Warren committed the offense of Attempted Theft. He was sentenced
to one year in custody and fined $500. This offense involved Warren’s stealing a vehicle,
which was found with him inside it and the steering column broken. No criminal history
points were assessed for this offense. (PSR, p. 10, 11)
At age 21, Warren committed the misdemeanor offense of Assault. The victim,
who was six months pregnant, was punched in the face by Warren after the victim had
asked some gang members to leave her property. Warren received 63 days imprisonment
for that conviction, but 60 days of that sentence was suspended. Eventually, Warren
violated the terms of his probation and had to serve the 60 days in jail. No criminal
history points were assessed for this violation. (PSR, p. 11)
One month and ten days after being sentenced for the Assault, Warren committed
the misdemeanor offenses of Reckless Driving and Evading Arrest. This offense involved
Warren driving a vehicle in a reckless manner. When he stopped the car, Warren fled on
foot. Warren was sentenced to a term of imprisonment of seven days for this offense. No
criminal history points were assessed for this violation. (PSR, p. 11)

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At age 22, Warren committed the misdemeanor offense of Driving While
Suspended. He was sentenced to three days custody for this violation. No criminal history
points were assessed for this violation. (PSR, p. 12)
At age 23, Warren committed the misdemeanor offense of Driving While
Suspended. He was sentenced to five days custody. No criminal history points were
assessed for this violation. (PSR, p. 12)
A few months later, Warren committed the misdemeanor offense of Gambling. He
was sentenced to one day of custody. No criminal history points were assessed for this
offense. (PSR, p. 12)
During 2000 and 2001, Warren was convicted twice for Driving While Suspended
and once for Failure to Appear for Booking or Processing. No criminal history points
were assessed for these three misdemeanor convictions. (PSR, p. 13)
At age 26, Warren was convicted of the felony of Theft of Property over $500.
The facts of the case reveal that Warren actually committed the offense of Armed
Robbery. The PSR reflects that Warren pointed a rifle at the victim and stole property
from her. The victim stated that Warren took her purse. Warren denied taking the purse
and claimed that he stole two pounds of marijuana from the woman. Warren was
sentenced to a term of imprisonment of one year for this conviction, but was paroled after
serving less than two months. No criminal history points were assessed for this
conviction. (PSR, p. 14)

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At ages 27, 28 and 29, Warren committed the misdemeanor offense of Driving
While Suspended six additional times. He was assessed two criminal history points for
those convictions. (PSR, p. 14, 15, 16, 17)
At age 29, Warren committed the felony offense of Possession of a Controlled
Substance. He was sentenced on October 23, 2006, to a year of custody, but was released
less than two months later to probation. The PSR reflects that Warren, instead of merely
possessing marijuana, actually possessed 613 grams of marijuana that was wrapped in
several plastic bags. Warren was a passenger in the car, but a pistol was found under the
driver’s seat. Warren received one criminal history point for this conviction. (PSR, p. 15,
16)
Again, at age 29, Warren committed the felony offense of Possession of a
Controlled Substance With the Intent to Sell. It is interesting to note that Warren
committed this offense while he was on bond, but before sentencing, after being caught
with the 613 grams of marijuana in the previous felony case. Warren was sentenced to
serve 45 days in custody for that conviction. He received one criminal history point.
(PSR, p. 16)
At age 30, Warren committed the federal felony offense of Felon in Possession of
a Firearm. In that case, Warren was found to be in possession of a fully automatic rifle
that had been stolen from a police vehicle. Warren admitted that he knew the rifle was
stolen and that he intended to sell it for a profit. Warren was sentenced to serve a period
of imprisonment of 48 months for that conviction and received three criminal history
points. (PSR, p. 17, 18)
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Warren continued to drive with a suspended license, receiving five additional
convictions for that offense at ages 35 and 36. Warren did not receive any criminal
history points for those convictions. (PSR, p. 18)
The P.S.R. recommended that Warren’s Criminal history category be set at III,
which resulted in a recommended Sentencing Guideline range of 108 to 135 months.
F. Objections to the Presentence Investigation Report.
On September 17, 2014, the Government filed an Objection to the P.S.R.,
asserting that Warren’s Criminal History Category was understated. The Government
requested an upward departure for that reason and/or an upward variance at that time.
On November 30, 2014, Warren’s attorney filed an objection to the P.S.R. in
which he objected to the calculation of the base offense level based on drug quantity. He
objected to the six level enhancement under Paragraph 28 for assaulting a law
enforcement officer during the flight from the crime. Another objection was based on
Paragraphs 125 and 128, which stated that the District Court might consider an upward
departure for Warren’s past criminal conduct involving shooting another person. The last
paragraph of that pleading requested that this Court impose a sentence below the
applicable Guideline range.
On December 11, 2014, the Government filed its Sentencing Memorandum
explaining why it was asking for an upward departure and/or variance for Warren. As
part of that pleading, the Government conceded Warren’s objection to the six level
offense level enhancement for assaulting a law enforcement officer. The Government
also stipulated that the two level enhancement for creating a substantial risk of death or
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injury to another during the flight from officers did not apply in his case. The
Government noted that, if this Court agreed with the Government, Warren’s new Total
Offense Level would be 21, his Criminal History Category would be III, resulting in a
Sentencing Guideline range of 46 to 57 months.
The Government then detailed the nature of Warren’s extensive criminal history
and the violence that occurred during that offense conduct. The Government asked for an
upward departure for an understated Criminal History Category and requested a final
sentence of 96 months imprisonment.
G. The Sentencing Hearing.
On December 14, 2014, this Court conducted a sentencing hearing. This Court
noted that the Government had agreed that Warren’s offense levels were overstated by
eight levels in the P.S.R., finding that his Total Offense Level was 21, that Warren’s
Criminal History Category was III, and that his Guideline range of imprisonment was 46
to 57 months imprisonment. (Sent. Tr., p. 9) This Court found that Warren’s Criminal
History Category was understated. (Sent. Tr., p. 10)
After argument and allocution, this Court imposed a sentence of 81 months
imprisonment on each count, to be served concurrently with each other and any other
state sentence, three years of supervised release and a $200 special assessment. (Sent. Tr.,
pp. 12 – 17)
H. The Appeal.
Warren did not appeal his conviction or sentence.
I. Petition for Post-Conviction Relief Pursuant to § 2255.
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On June 15, 2015, Warren filed his Petition under 28 U.S.C. § 2255, asking that
this Court set aside Warren’s conviction and sentence. Warren alleges several errors in
his conviction, including his complaint that: (1) his attorney was ineffective for failing to
object to the Government’s request for an upward departure and/or variance; (2) this
Court failed to provide advance notice that it was considering an upward departure; and
(3) that the Government was improperly motivated to ask for an upward departure after a
downward adjustment of the offense levels applicable to Warren.
Warren’s complaints all center around his factual assertion that the Government
failed to file its notice that it was seeking an upward departure for an understated criminal
history category on time. Warren claims that the notice was filed only four days before
the sentencing hearing and his Plea Agreement required at least a ten day notice. The
glaring flaw in Warren’s argument is that the Government first filed its notice that it was
seeking an upward departure on that basis on September 17, 2014, giving Warren much
more than ten days notice of the Government’s intent to seek this upward departure.
Warren ignores that September 17 filing and asserts error.
None of Warren’s complaints have any merit.
APPLICABLE LAW
A. NEED FOR EVIDENTIARY HEARING AND BURDEN OF PROOF
28 U.S.C. § 2255 provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the
prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.

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Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court states:
The motion, together with all the files, records, transcripts, and correspondence
relating to the judgment under attack, shall be examined promptly by the judge to
whom it is assigned. If it plainly appears from the face of the motion and any
annexed exhibits in the prior proceedings in the case that the movant is not entitled
to relief in the district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
When a petition is brought under Section 2255, the petitioner bears the burden of
establishing the need for an evidentiary hearing. In determining whether petitioner is
entitled to an evidentiary hearing the court must take many of petitioner’s factual
averments as true, but the court need not give weight to conclusory allegations, selfinterest and characterizations, discredited inventions, or opprobrious epithets. United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary when a
Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate is
conclusively refuted as to the alleged facts by the files and the records of the case. Id., at
225-6. See also United States v. Robinson, 64 F.3d 403 (8th Cir. 1995) Engelen v. United
States, 68 F.3d 238, 240 (8th Cir. 1995).
When all the information necessary for the court to make a decision with regard to
claims raised in a 2255 motion is included in the record, there is no need for an
evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). An
evidentiary hearing is unnecessary where the files and records conclusively show
petitioner 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).
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim alleging ineffective assistance of counsel, the movant must
satisfy the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). Under Strickland, the 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, the 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. The movant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
The Eighth Circuit has described the two-fold test as follows: (1) counsel’s
representation fell below an objective standard of reasonableness; and (2) but for this
ineffective assistance, there is a reasonable probability that the outcome of the trial would
have been different. Rogers v. United States, 1 F.3d 697, 700 (8th Cir. 1993). More
recently the Eighth Circuit has described the Strickland test as follows: “Whether
counsel’s performance was in fact deficient and, if so, whether the defendant was
prejudiced by the inadequate representation. If we can answer ‘no’ to either question,
then we need not address the other part of the test.” Fields v. United States, 201 F.3d
1025, 1027 (8th Cir. 2000).

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When evaluating 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, 104 S.Ct. at 2065. Counsel’s performance is
considered objectively, and gauged “whether it was reasonable ‘under prevailing
professional norms’ and ‘considering all the circumstances.’” Fields, 201 F.3d at 1027,
quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Counsel’s challenged conduct
is viewed as of the time of his representation. “And we avoid making judgments based on
hindsight.” Fields, 201 F.3d at 1027. A reviewing court’s “scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
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. 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. Lockhart,
474 U.S. at 56, citing Tollett v. Henderson, 411 U. S. at 267.
DISCUSSION
This Court will address each complaint made by Warren that he presented in his
Petition.
A. Warren’s attorney was not ineffective for failing to object to the
Government’s request for an upward departure and/or variance.

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In this issue, Warren noted the language of the parties’ written Plea Agreement to the
effect that:
The parties further agree that either party may request a sentence above or below
the U.S. Sentencing Guidelines range (combination of Total Offense Level and
Criminal History Category) ultimately determined by the Court pursuant to any
chapter of the Guidelines and Title 18, United States Code, Section 3553(a). The
parties further agree that notice of any such request will be given no later than
ten days prior to sentencing and that said notice shall specify the legal and factual
bases for the request.
Plea Stip., p. 2.
Warren states that the Government filed its Sentencing Memorandum on
December 11, 2014, which was four days before Warren’s sentencing hearing on
December 15, 2014. Warren believes that the Government violated the above-cited term
of the parties’ written Plea Agreement by filing its request for an upward departure only
four days before the sentencing hearing (thereby violating the Plea Agreement) and that
his attorney was ineffective for failing to object to the Government’s request.
However, Warren completely ignores the Government’s notice to him that it
would seek an upward departure for an understated Criminal History Category that was
filed on September 17, 2014. This occurred more than two months before his actual
sentencing hearing. Warren had months of advance notice and the Government’s notice
vastly exceeded what was required under the Plea Agreement. There was no violation of
the parties’ plea agreement by the Government’s request, nor was Warren prejudiced.
The Government set forth more detailed reasons for its September 17 request for an
upward departure in the December 11 pleading, but Warren knew full well that the

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Government was going to make that request. Warren cannot complain of surprise or
misconduct on the Government’s part.
There was no basis for Warren’s attorney to object to the Government’s request
for an upward departure. Warren’s attorney was not ineffective on this basis.
B. This Court did not commit any error in not providing advance notice to
Warren that it was considering an upward departure; Warren’s
attorney was not ineffective for failing to object.
In this ground, Warren contends that this Court erred in considering an upward
departure without providing advance notice to him. Warren cites Federal Rule of
Criminal Procedure 32(h) and claims that this Court acted on its own motion. Warren
comes to that conclusion by his self-serving assertion since the Government’s notice of
its intent to seek an upward departure was filed on December 11, the Court couldn’t use
that as a basis for an upward departure, and therefore, the Court’s decision to upwardly
depart must have been on its own motion.
Rule 32(h) states:
(h) Notice of Possible Departure from Sentencing Guidelines. Before the
court may depart from the applicable sentencing range on a ground not
identified for departure either in the presentence report or in a party’s prehearing
submission, the court must give the parties reasonable notice that it is
contemplating such a departure. The notice must specify any ground on
which the court is contemplating a departure.
Rule 32(h).
Of course, this Court was not acting on its own motion; it was acting on the
Government’s September 17, 2014, motion.

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Again, Warren fails to recognize that the Government gave him much more than
ten days notice of its intent to seek an upward departure when it filed its Objection to the
Presentence Report on September 17, 2014. The record at sentencing is clear that this
Court was granting the Government’s Motion for an Upward Departure for an
Understated Criminal History, when the Court stated, at sentencing:
Court: . . . I am willing to grant the motion for upward departure.
Sent. Tr., p. 10, lines 13-14.
This Court did not act on its own motion, but acted on the Government’s motion,
which was filed months before it was required to be filed. Warren has no valid issue in
this regard.
C. The Government was not improperly motivated to ask for an upward
departure after a downward adjustment of the offense levels applicable
to Warren.
In this issue, Warren contends, without factual allegations, that the Government
was improperly motivated to seek an upward departure in his case. Warren claims that
the Government only sought to obtain an upward departure for an understated criminal
history because it was disappointed in losing the Guidelines enhancement for assaulting a
police officer and putting other citizens in danger during the escape.
The initial “disclosure” P.S.R. for Warren was filed on September 15, 2014. The
Government’s notice that it was going to ask for an upward departure was first filed two
days later, on September 17, 2014. When the disclosure P.S.R. was filed, the Government
did not know that Warren was going to object to the Guideline enhancements due to the
police chase. The Government was unaware that those Sentencing Guideline
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enhancements were improper. The record makes clear that the Government was asking
for an upward departure for an understated Criminal History Category, even with the
Guideline enhancements. The Government wasn’t satisfied with the prior Guideline
range of 108 to 135 months as asked for an upward departure at that time. The
Government’s position didn’t change after it conceded that the enhancements didn’t
apply. The Government merely continued to pursue its original position, that Warren’s
Criminal History Category was severely understated.
Warren accuses the Government of misconduct, but fails to recognize the
consistency of the Government’s actions and requests. There was no error by this Court
in this issue and no misconduct by the Government.
CONCLUSION
For the foregoing reasons, this Court denies Warren’s § 2255 petition, without a
hearing.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Warren has not made a substantial showing of the denial of a
federal constitutional right.
Dated this 10th day of September, 2015.

______________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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