Lorren v. United States

• Decision Date: 09 June 2015
• Docket Number: Case No. 1:14CV00183 SNLJ
• Court: U.S. District Court — Eastern District of Missouri
• Parties: BRYAN KEITH LORREN, Movant, v. UNITED STATES OF AMERICA, Respondent.

BRYAN KEITH LORREN, Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No. 1:14CV00183 SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

June 9, 2015

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 disposition.

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 theEighth Circuit has "decriminalized" a state court suspended imposition of sentence, and this somehow deprived the Court of its jurisdiction.

II. FACTS AND PROCEDURAL HISTORYThe Indictment

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).

Plea Agreement

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, loadedwith .25 caliber ammunition, was found on the back floorboard on the passenger side.

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 Florida.

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.

(P.A. 3)

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.

(P.A. 4)

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 defenses.

(P.A. 8)

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 defenses.

(P.A. 8)

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)

The Plea

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)

Presentence Report

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...