Reed v. United States of America
Filing
89
MEMORANDUM OPINION AND ORDER as to Odrey Paul Reed; adopting 87 Proposed Findings and Recommendation; dismissing 84 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Odrey Paul Reed. Signed by Judge John T. Copenhaver, Jr. on 4/10/2012. (cc: Judge, USA, counsel, movant, Magistrate Judge) (lca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ODREY PAUL REED,
v.
Movant
CIVIL ACTION NO. 2:11-0804
(Criminal No. 2:09-00100)
UNITED STATES OF AMERICA,
Respondent
MEMORANDUM OPINION AND ORDER
This action was previously referred to the Honorable
Mary E. Stanley, United States Magistrate Judge, for submission
to the court of her Proposed Findings and Recommendation (“PF&R”)
for disposition pursuant to 28 U.S.C. § 636.
On October 20, 2009, the United States filed a twocount information.
Count One charged movant with a violation of
18 U.S.C. §§ 922(j) and 924(a)(2).
a violation of 18 U.S.C. 1512(c)(1).
Count Two charged movant with
On October 21, 2009, movant
pled guilty to both counts.
On January 8, 2010, the presiding district judge
entered Judgment.
Movant was, inter alia, committed to the
custody of the United States Bureau of Prisons for a total term
of 120 months, to be followed by a three-year term of supervised
release.
Movant did not appeal.
On October 28, 2011, movant sought relief pursuant to
28 U.S.C. § 2255 as more fully described by the magistrate judge
in her PF&R.
On November 23, 2011, the magistrate judge entered
her PF&R recommending that the court deny the relief requested.
The magistrate judge recommends as much based upon the fact that
(1) movant previously waived in his plea agreement the right to
challenge his sentence in any collateral attack except for a
claim of ineffective assistance of counsel, and (2) the 1993
daytime burglary conviction about which movant complains was not
used to enhance his sentence.
Movant’s objections to the PF&R filed December 9, 2011,
do not counter the magistrate judge’s well-reasoned discussion.
Foremost, movant was assigned a total offense level of 26 under
the United States Sentencing Guidelines.
Paragraph 12 of the
plea agreement states as follows:
Mr. Reed knowingly and voluntarily waives his right to
seek appellate review of any sentence of imprisonment
or fine imposed by the District Court on any other
ground, so long as that sentence is below or within the
Sentencing Guideline range corresponding to offense
level 29. . . .
. . . .
Mr. Reed also knowingly and voluntarily waives the
right to challenge his guilty plea and his conviction
resulting from this plea agreement, and any sentence
imposed for the conviction, in any collateral attack,
including but not limited to a motion brought under 28
U.S.C. § 2255.
2
The waivers noted above shall not apply to a
post-conviction collateral attack or direct appeal
based on a claim of ineffective assistance of counsel.
(Plea Agmt. ¶ 12).
by the waiver.
The instant challenge is plainly encompassed
Movant does not allege ineffective assistance of
counsel.1
Additionally, movant’s objections clarify that his
challenge is substantively deficient.
The magistrate judge’s
analysis reveals, as noted, that the 1993 daytime burglary
conviction played no role in the calculation of movant’s
sentence.
Movant does not challenge that conclusion.
He instead
notes only that the 1993 daytime burglary conviction appears in
the stipulation of facts attached to his plea agreement, along
with other felony predicates.
The appearance of the 1993 daytime
burglary conviction in the stipulation, however, lends no support
to the contention that the crime played any role in the
calculation of movant’s sentence.
Again, as demonstrated by the
magistrate judge, no criminal history points were assigned to the
1993 daytime burglary conviction in the course of assembling the
movant’s criminal history category.2
Movant asserts that he seeks relief under 18 U.S.C. § 3582
and not section 2255. Inasmuch as movant’s challenge is not
contemplated, or permitted, by section 3582, the court analyzes
the instant challenge pursuant to section 2255.
1
For the first time in his objections, movant contends that
his June 23, 2003, conviction for unlawful wounding was
(continued...)
2
3
Based upon a de novo review, and having found the
objections meritless, the court adopts and incorporates herein
the magistrate judge’s PF&R.
The court, accordingly, ORDERS that
this action be, and it hereby is, dismissed.
The Clerk is directed to forward copies of this written
opinion and order to the movant, all counsel of record, and the
United States Magistrate Judge.
DATED:
April 10, 2012
John T. Copenhaver, Jr.
United States District Judge
(...continued)
improperly used at sentencing. He asserts that the crime is not
a felony and, presumably, that it should not have been assigned
three criminal history points.
United States Sentencing Guideline § 4A1.1(a) provides that
the court must “[a]dd 3 points for each prior sentence of
imprisonment exceeding one year and one month.” Id. § 4A1.1(a).
United States Sentencing Guideline § 4A1.2(b)(1) states that
“[t]he term ‘sentence of imprisonment’ means a sentence of
incarceration and refers to the maximum sentence imposed.” Id. §
4A1.2(b)(1) (emphasis added). Inasmuch as movant was sentenced
to a one- to three-year term of imprisonment on the unlawful
wounding conviction, it was properly assigned three criminal
history points. Movant’s late-rising assertion is thus not
meritorious.
2
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?