Wilson v. USA
MEMORANDUM ORDER overruling objections and adopting 7 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Ron Clark on 1/12/17. (tkd, )
**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
ROBERT EARL WILSON
UNITED STATES OF AMERICA
CIVIL ACTION No. 1:13-CV-520
JUDGE RON CLARK
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Robert Earl Wilson, a federal prisoner currently confined at USP Yazoo,
proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255. The court referred the matter to the Honorable Keith Giblin, United States
Magistrate Judge, in Beaumont, Texas, for consideration. Judge Giblin filed his Report and
Recommendation, to which Movant filed objections. The court has received and considered the
Report and Recommendation of the United States Magistrate Judge filed pursuant to such referral,
along with the record and pleadings. Movant’s objections require a de novo review in relation to
the pleadings and the applicable law. See FED. R. CIV. P. 72(b). For the reasons that follow,
Movant’s objections are meritless, and the court adopts the Magistrate Judge’s Report and
As outlined by the Magistrate Judge, Movant pleaded guilty to felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), on August 14, 2008. On March 30, 2009, the court
sentenced Movant to a 240-month term of imprisonment pursuant to an 11(c)(1)(C) plea
agreement. On April 8, 2009, the court docketed the judgment and sentence. Movant’s conviction
became final on April 22, 2010, one year after the day he could have filed a notice of appeal.
Movant filed his Motion to Vacate, Set Aside, or Correct Sentence on August 16, 2013.
In his Motion to Vacate, Set Aside, or Correct Sentence, Movant contended that he was
deprived due process and effective assistance of counsel because he was incorrectly sentenced
under the Armed Career Criminal Act (ACCA). Specifically, Movant claimed that his counsel
was ineffective for failing to object to the ACCA designation which he alleges was predicated on
a conviction for walkaway escape. Movant argued that under Chambers v. United States, 129 S.
Ct. 687 (2009), walkaway escape no longer qualifies under the residual clause of the ACCA’s
definition of violent felony. Movant further argued that Chambers is retroactively applicable and
entitles him to resentencing without the ACCA designation.
On June 26, 2015, the Supreme Court of the United States held that imposing an increased
sentence under the residual clause of the ACCA violates the constitutional guarantee of due
process. Johnson v. United States, 135 S. Ct. 2551 (2015). On December 22, 2015, the Magistrate
Judge entered his Report and Recommendation, recommending dismissing with prejudice
Movant’s Motion to Vacate, Set Aside, or Correct Sentence, as time-barred. On February 3, 2016,
Movant filed objections to the Magistrate Judge’s Report and Recommendation.
On April 18, 2016, the Supreme Court held that Johnson v. United States applied
retroactively to ACCA cases on collateral review. Welch v. United States, 136 S. Ct. 1257 (2016).
On May 2, 2016, Movant filed a Supplement to his Motion to Vacate, Set Aside, or Correct
Sentence, re-characterizing his claim under Chambers as a Johnson claim. In both Movant’s
Objections to the Magistrate Judge’s Report and Recommendation (Dkt. # 12) and Movant’s
Supplement to his Motion to Vacate, Set Aside, or Correct Sentence (Dkt. # 13), Movant requests
the court to change the sentence that he received as part of an 11(c)(1)(C) agreement.
A sentence imposed under an 11(c)(1)(C) agreement is eligible for review if the
11(c)(1)(C) agreement is based on the Sentencing Guidelines.
A sentence imposed under a Rule 11(c)(1)(C) agreement may be eligible for review only
if the 11(c)(1)(C) agreement:
(i) calls ‘for the defendant to be sentenced within a particular Guidelines sentencing
range;’ (ii) provides ‘for a specific term of imprisonment—such as a number of
months—but also makes clear that the basis for the specified term is a Guidelines
sentencing range applicable to the offense to which the defendant pleaded guilty;’
or (iii) ‘explicitly employs a particular Guidelines sentencing range to establish the
term of imprisonment.’
United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016) (quoting Freeman v. United States, 564
U.S. 2685, 2697–98 (2011) (Sotomayer, J., concurring)).
Movant’s sentence is not eligible for review because it was imposed pursuant to an
11(c)(1)(C) agreement which was not based on the Sentencing Guidelines.
In this case, Movant’s plea agreement did not: (1) call for him to be sentenced within a
particular Guidelines sentencing range; (ii) provide for a specific term of imprisonment based on
a Guidelines sentencing range applicable to the subject offense; or (iii) explicitly employ a
particular Guidelines sentencing range to establish the term of imprisonment. Rather, Movant’s
11(c)(1)(C) agreement includes a straightforward agreement that Movant shall receive 240 months
The agreed-upon sentence of 240 months was significantly lower than the Guidelines range
of 360 months to life; it was not based on the Guidelines. Additionally, pursuant to the 11(c)(1)(C)
agreement, Movant pleaded guilty only to one count of the Superseding Indictment—felon in
possession of a firearm.
Had Movant been convicted on all counts of the Superseding
Indictment—felon in possession of a firearm, conspiracy to possess and distribute a controlled
substance, possession with intent to distribute a controlled substance, and possession of a firearm
in furtherance of a drug trafficking crime— Movant would have faced a potential sentence of 384
to 465 months.
Because Movant’s sentence under the 11(c)(1)(C) agreement was not established by or
based upon or within the subject offense Guidelines range, and is not now eligible for review, any
objection Movant brings regarding the Magistrate Judge’s dismissal of Movant’s Motion to
Vacate, Amend, or Correct Sentence is meritless.
Accordingly, the objections of Movant are OVERRULED. The report of the Magistrate
Judge to the extent it recommends dismissal is ADOPTED. A final judgment will be entered in
this case in accordance with the Magistrate Judge’s recommendations.
Furthermore, the court is of the opinion that Movant is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not
proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard
for a certificate of appealability requires the movant to make a substantial showing of the denial
of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the movant need not
establish that he would prevail on the merits. Rather, he must demonstrate that the issues are
subject to debate among jurists of reason, that a court could resolve the issues in a different manner,
or that the questions presented are worthy of encouragement to proceed further. See Slack, 529
U.S. at 483–84. Any doubt regarding whether to grant a certificate of appealability should be
resolved in favor of the movant, and the severity of the penalty may be considered in making this
determination. See Miller v. Johnson, 200 F.3d 274, 280–81 (5th Cir. 2000).
In this case, Movant has not shown that any of the issues would be subject to debate among
jurists of reason or that another court would resolve the issues in a different manner. There is
no fundamental unfairness or injustice in holding Movant to the terms of the very favorable
agreement that he bargained for and accepted. The questions presented are not worthy of
encouragement to proceed further. Therefore, Movant has failed to make a sufficient showing
to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability
will not be issued.
So ORDERED and SIGNED this 12 day of January, 2017.
Ron Clark, United States District Judge
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