McKennie v. United States

• Decision Date: 07 August 2020
• Docket Number: No. 1:17-cv-01061-JDB-jay,1:17-cv-01061-JDB-jay
• Parties: GARY MCKENNIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of Tennessee

GARY MCKENNIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 1:17-cv-01061-JDB-jay

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

August 7, 2020

ORDER DENYING 28 U.S.C. § 2255 AMENDED PETITION, DENYING MOTION TO EXPEDITE AS MOOT, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner, Gary McKennie,¹ has filed an amended motion to vacate, set aside, or correct his sentence, (Docket Entry ("D.E.") 12), pursuant to 28 U.S.C. § 2255, as well as a supplemental claim, (D.E. 23-1 at PageID 365), (collectively, "Amended Petition").² The inmate has also submitted a motion for an expedited ruling. (D.E. 27.) For the following reasons, the Amended Petition is DENIED and the motion to expedite is DENIED as moot.³

BACKGROUND

In December 2014, the federal grand jury for the Western District of Tennessee returned an indictment charging McKennie with twenty-one counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (United States v. McKennie, No. 1:14-cr-10103-JDB-1, D.E. 2 (W.D. Tenn.) ("No. 1:14-cr-10103-JDB-1").) Defendant subsequently entered a plea of guilty to all counts pursuant to a written plea agreement with the Government. (Id., D.E. 19, 20, 21.) The agreement required the Government to recommend the low end of the advisory incarceration range under the United States Sentencing Guidelines Manual ("Guidelines" or "U.S.S.G."). (Id., D.E. 20 at PageID 30.)

At the change of plea hearing, the Government recited the evidence that would have been presented at trial, including proof of Defendant's status as a convicted felon. Specifically, the prosecutor stated that, "in February of 2010, [Defendant] was convicted of felony theft of property and false reporting[.]" (Id., D.E. 50 at PageID 187.) McKennie answered "Yes, sir," when asked by the Court, "[I]s the information referencing your possession of these firearms, the fact that you have been, previously been convicted of a felony, and that these firearms were all manufactured outside the state of Tennessee, it that basically correct, sir?" (Id. at PageID 189.)

In November 2015, the federal grand jury returned a one-count indictment charging McKennie with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). (United States v. McKennie, No. 1:15-cr-10098-JDB-1, D.E. 2 (W.D. Tenn.) ("No. 1:15-cr-10098-JDB-1").) Pursuant to a written agreement with the Government, Defendant pleaded guilty to the sole count of the indictment on January 27, 2016. (Id., D.E. 16, 17, 18.) Like the plea agreement in the 2014 case, the agreement in the subsequent case called for the Government to recommend the low end of the advisory incarceration range. (Id., D.E. 17 at PageID 26.) At the change ofplea hearing, the Government recited the evidence that would have been presented at trial and again referenced Defendant's status as a felon resulting from his February 6, 2010 conviction for theft of property. (Id., D.E. 31 at PageID 106.) Upon questioning by the Court, Defendant affirmed that the prosecutor's recitation was "basically correct." (Id. at PageID 108.)

The two indictments were combined for sentencing purposes. (Presentence Report ("PSR") at 1.) The United States probation officer assigned to Defendant a base offense level of 14 under U.S.S.G. § 2K2.1. (Id. at ¶ 23.) The offense level was increased by four under U.S.S.G. § 2K2.1(b)(1)(B) because "the offense involved between eight and twenty-four firearms." (Id. at ¶ 24.)

Two points were added for obstruction of justice under U.S.S.G. § 3C1.1 as a result of Defendant's conduct in "attempt[ing] to hide or get rid of a rifle that was in his residence before meeting with ATF investigators."⁴ (Id. at ¶ 27.) More specifically,

[t]he defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice when [he] contacted another individual and asked him to take a rifle out of his residence before investigators arrived in case #1:14CR10103. The communication took place subsequent to the defendant receiving a call from ATF investigators requesting to meet him about the twenty firearms that were confiscated two to three days prior. At that point, the defendant knew or should have known that the rifle was part, or would immediately be part, of the investigation.

(PSR at ¶ 19.)

The offense level was increased another three points for obstruction of justice under § 3C1.3.⁵ (Id. at ¶ 28.) The enhancement was recommended because, "[w]hile on bond in case 1:14CR10103, the defendant possessed ammunition that led to the indictment and conviction in case 1:15CR10098." (Id.)

The probation officer declined to recommend a reduction for acceptance of responsibility. (Id. at ¶¶ 20, 31.) "Based upon a total offense level of 23 and a criminal history category of II, the guideline imprisonment range [was determined to be] 51 months to 63 months." (Id. at ¶ 60 (bolding omitted).) The probation officer also calculated that the sentencing range would be "37 to 46 months" if the Court were to "grant[] [a 3-point] reduction for acceptance of responsibility[.]" (Id. at ¶ 61.)

Defense counsel, Steven West, filed a position paper objecting to the 2 level increase for obstruction of justice and the probation officer's decision not to recommend a reduction for acceptance of responsibility. (No. 1:15-cr-10098-JDB-1, D.E. 19 at PageID 33-34.) Regarding obstruction, counsel argued that the two points should not be applied because "the McKenzie Police did not remove the gun from the Defendant's residence. In fact, during a search of the Defendant's residence, Officer Lorrie Mulligan [of the] McKenzie Police Department . . . was aware of the gun and left it." (Id. at PageID 34.)

The probation officer responded to the objections, advising the Court that the obstruction-of-justice enhancement was proper and that "the defendant's actions during the entirety of this case do not appear to warrant" a reduction for acceptance of responsibility. (2d Addendum to PSR at 1-2.) Regarding obstruction, the officer explained that

[t]he defendant attempted to conceal the firearm that he was illegally possessing. The firearm was a critical piece of evidence in this case and was charged in one of the counts in the indictment. The defendant knew that he could not possess firearms due to his previous felony conviction. He said as much to the ATF investigators when they interviewed him at his home. The defendant contacted the C[onfidential] I[nformant] to pick up and conceal his firearm prior to the arrival of the ATF agents. His motive is not clear, but it is apparent that he did not want the ATF to find that firearm.

(1st Addendum to PSR at 1.)

Prior to sentencing, the parties entered into a verbal agreement to recommend a sentence of 30 months' incarceration in the 2014 case and 42 months on the 2015 case, with the first 30 months to run concurrently and the remaining 12 months to run consecutively to the 30 months. (No. 1:15-cr-10098-JDB-1, D.E. 32 at PageID 120-21.) At the sentencing hearing on March 25, 2016, the prosecutor explained why the parties reached the compromise:

There are, as the Court is aware, there are a number of objections that have been raised and alternative guidelines. One that would apply without the enhancements and a sentencing range that would apply with the enhancements regarding acceptance of responsibility. That took care of one of the objections.

And the other objection was a two level enhancement in—let me be specific here—in Paragraph 27 [of the PSR], the adjustment for obstruction of justice.

Mr. West and I discussed that matter. And we believe, I think fairly, that the Court could decide that either favorably to Mr. McKennie or favorably to the government. It's somewhat of a toss-up, as well as the issue regarding the acceptance of responsibility.

What we have done was basically split the difference between the sentence range that would result with all enhancements in place, and the sentence, the low end of the guideline range that would apply if . . . Mr. West['s] objections were granted.

(Id. at PageID 118.)

Defense counsel further explained to the Court that the parties' recommended sentence of 42 months' incarceration represented a compromise between 51 months, which was the low endof the PSR's advisory range, and 30 months, which would have been the low end of the range had Defendant's objections been sustained. (Id. at PageID 122.)

After considering the sentencing factors under 18 U.S.C. § 3553 and the parties' recommendation, the Court sentenced Defendant to an effective sentence of 42 months' incarceration and three years of supervised release. (Id. at PageID 125.) In compliance with the appellate waiver in the plea agreements, Defendant did not take a direct appeal.

DISCUSSION

In his Amended Petition, McKennie asserts the following claims:

Claim 1: "[C]ounsel was ineffective for failing to adequately explain the meaning of the collateral-attack waiver in the plea agreement[s], and for failing to ensure the plea agreement[s] complied with the 2014 Department of Justice Memorandum on plea agreement waivers[.]" (D.E. 23-1 at PageID 359-60; see also D.E. 12 at PageID 152.)

Claim 2: "[C]ounsel was ineffective for failing to object to the omission of a reduction under U.S.S.G. § 2K2.1(b)(2)[.]" (D.E. 23-1 at PageID 360; see also D.E. 12 at PageID 153.)

Claim 3: "[C]ounsel was ineffective for failing to advise McKennie of an entrapment defense[.]" (D.E. 23-1 at PageID 360; see also D.E. 12 at PageID 155.)

Claim 4: "[C]ounsel was ineffective for failing to collaterally attack a prior state conviction." (D.E. 23-1 at PageID 360; see also D.E. 12 at PageID 156.)

Claim 5: "The plain terms of McKennie's plea agreements were breached by the Government's failure to recommend a sentence at the bottom of the Guideline range," and "counsel was ineffective for failing to object to this breach."

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