Hence v. United States of America

Filing 11

ORDER re 1 DENYING Motion Under 28 U.S.C. § 2255 filed by Dante Hence. Signed by Judge Samuel H. Mays, Jr. on 7/10/19.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DANTE HENCE,

)
)
)
)
)
)
)
)
)
)

Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 2:16-cv-2772
No. 2:15-cr-20131

ORDER

Before the Court is Dante Hence’s September 26, 2016 Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody.

(ECF No. 1.)

The United States

(the “Government”) responded on November 8, 2016.
Hence replied on December 1, 2016.

(ECF No. 6.)

(ECF No. 7.)

For the following reasons, the Court DENIES Hence’s motion
and DENIES a certificate of appealability (“COA”).
I.

Background
On September 10, 2015, Hence pled guilty to receiving or

possessing a firearm not registered in the National Firearms
Registration

and

Transfer

§§ 5841, 5861(d), and 5871.

Record,

in

violation

of

26

U.S.C.

(Case No. 15-cr-20131, ECF No. 24.)

At sentencing, the Court determined that Hence’s base offense
level was 18 because the offense involved a firearm described in

26 U.S.C. § 5845(a).

(Statement of Reasons at 1.)

The Court added

four levels under U.S.S.G. § 2K2.1(b)(4)(B) because the firearm
had an obliterated serial number.
more

levels

under

U.S.S.G.

(Id.)

The Court added four

§ 2K2.1(b)(6)(B)

because

Hence

possessed the firearm in connection with another felony offense.
(Id.)
granted

Hence’s adjusted offense level was 26.
a

full

three-level

reduction

for

(Id.) The Court
acceptance

responsibility, bringing Hence’s total offense level to 23.

of

(Id.)

With a criminal history category of V, the Court calculated Hence’s
guideline custody range to be 84 to 105 months.
sentenced Hence to 84 months in prison.

(Id.)

The Court

(Case No. 15-cr-20131,

ECF No. 36 at PageID 88.)
Hence contends that his sentence is unlawful for two reasons.
First, he argues that the Court erroneously enhanced his sentence
under § 2K2.1(b)(6)(B) because the Court relied on a dismissed
felony.

Second, he argues that, under Johnson v. United States,

135 S. Ct. 2251 (2015), the Court wrongly enhanced his sentence
under § 2K2.1(a)(3) for having a prior felony conviction of a crime
of violence.
II.

Analysis
Hence’s arguments are not well-taken.
First,

a

sentence

enhancement

under

§ 2K2.1(b)(6)(B)

for

“us[ing] or possess[ing] any firearm or ammunition in connection
with another felony offense” does not require a conviction. “[T]he

2

term ‘another felony offense’ means ‘any federal, state, or local
offense,

other

trafficking

than

the

offense,

explosive

punishable

or

by

firearms

possession

imprisonment

for

a

or

term

exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.”
App’x

543,

545

(6th

United States v. Neal, 627 F.

Cir.

2015)

(quoting U.S.S.G.

§ 2K2.1(b)(6)(B) cmt. n. 14(C)) (emphasis added).

At sentencing,

the Court determined that Hence committed aggravated assault with
the firearm.
Second,

The sentence enhancement was properly applied.
the

Court

did

not,

as

Hence

asserts,

rely

on

§ 2K2.1(a)(3) to enhance his sentence. The Court declined to adopt
the Presentence Report’s recommendation that Hence’s base offense
level

be

enhanced

under

§ 2K2.1(a)(3)

committed a crime of violence.

for

having

previously

The Court found that Hence’s

conviction for facilitation of second-degree murder was not a crime
of violence.
Hence’s arguments are without merit.

His motion is DENIED.

The Court must also decide whether to issue a certificate of
appealability (“COA”).

No § 2255 movant may appeal without a COA.

A COA may issue only if the movant has made a substantial showing
of the denial of a constitutional right, and the COA must indicate
the specific issue or issues that satisfy the required showing.
U.S.C. §§ 2253(c)(2) & (3).

28

A “substantial showing” is made when

the movant demonstrates that “reasonable jurists could debate

3

whether (or, for that matter, agree that) the [motion] should have
been resolved in a different manner or that the issues presented
were

adequate

further.”

to

deserve

encouragement

to

proceed

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

In this case, there can be no question that Hence’s claims
are meritless for the reasons previously stated.

Because any

appeal by Hence on the issues raised in his motion does not deserve
attention, the Court DENIES a COA.
To appeal in forma pauperis in a § 2255 case, and thereby
avoid

the

appellate

1913 and 1917,
to Federal

a

Rule

v. Sparkman,

117

filing

prisoner
of

fee

must

obtain

Appellate

F.3d

949,

required

pauper

Procedure

952

by 28

(6th

U.S.C.

status

pursuant

24(a).

Cir.

§§

Kincade

1997).

Rule

24(a) provides that a party seeking pauper status on appeal must
first file a motion in the district court, along with a supporting
affidavit.

Fed. R. App. P. 24(a)(1). However, Rule 24(a) also

provides that if the district court certifies that an appeal would
not be taken in good faith, or otherwise denies leave to appeal in
forma pauperis, a prisoner must file his motion to proceed in
forma pauperis in

the

appellate

court.

See Fed.

R.

App.

P.

24(a)(4)-(5).
Because Hence is clearly not entitled to relief, the Court
denies a certificate of appealability.

It is CERTIFIED, pursuant

to Federal Rule of Appellate Procedure 24(a), that any appeal in

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this matter would not be taken in good faith.

Leave to appeal in

forma pauperis is DENIED.
III. Conclusion
For the foregoing reasons, Hence’s motion is DENIED.

A COA

is DENIED.

So ordered this 10th day of July, 2019.

/s/ Samuel H. Mays, Jr. __ _
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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