Sims v. United States, Case No. 1:06-cr-68

• Decision Date: 09 February 2012
• Docket Number: Case No. 1:09-cv-114,Case No. 1:06-cr-68
• Parties: DEON TERRELL SIMS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

DEON TERRELL SIMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Case No. 1:06-cr-68
Case No. 1:09-cv-114

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA

Dated: February 9, 2012

Judge Edgar
MEMORANDUM AND ORDER

Federal prisoner Deon Terrell Sims moves pursuant to 28 U.S.C. § 2255 for post-conviction relief. [Court Doc. No. 145]. After reviewing the record, the Court concludes that the motion will be denied and dismissed with prejudice. The record conclusively shows that the motion is without merit and Sims is not entitled to any relief under § 2255. There are no material issues of fact in dispute and there is no need for an evidentiary hearing.

I. Facts and Procedural History

On June 13, 2006, Sims and co-defendants Jeffrey T. Woods, Shannon, Vinson, and Vincent Bowling were charged in a nine-count indictment concerning their distribution of cocaine base (crack). Sims was charged in Counts One, Three, and Six.

Count One charged that Sims, Woods, Vinson, and Bowling conspired to violate 21 U.S.C. § 841(a)(1), that is, to distribute 50 grams or more of a mixture and substance containing cocaine base (crack), a Schedule II controlled substance, in violation of 21 U.S.C. § 846. Count Three charged that Sims and Woods, aided and abetted by one another, distributed 5 grams of more of a mixture and substance containing cocaine base (crack), a Schedule II controlled substance, in

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violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. Count Six charged that Sims possessed with intent to distribute a mixture and substance containing cocaine base (crack), a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

Sims pleaded not guilty and the case went to a jury trial on January 24 - 25, 2007. On January 25, 2007, the jury returned its verdict. The jury found Sims not guilty on Count One. The jury found Sims guilty on Count Three and that the offense involved 5 grams of more of cocaine base (crack). On Count Six, the jury found Sims guilty of the lesser included offense of possession of cocaine base (crack) in violation of 21 U.S.C. § 844(a).

Sims made a motion for new trial under Fed. R. Crim. P. 33 arguing that the evidence presented at trial did not support the jury's verdict of guilty on Counts Three and Six. On April 3, 2007, this Court denied the motion for new trial. [Court Doc. No. 105]. United States v. Sims, 2007 WL 1054142 (E.D. Tenn. April 3, 2007).

The 2006 Sentencing Guidelines were applied in this case. Based upon the amount of crack cocaine involved, the base offense level was 26. The presentence investigation report (PSR) classified Sims as a career offender under U.S.S.G. § 4B1.1 with an offense level of 37. The predicate convictions for applying U.S.S.G. § 4B1.1 included a controlled substance conviction of Sims in Hamilton County, Tennessee for felony possession of less than .5 grams of cocaine, an offense under Tennessee state law that included an element of distribution. Sims also had a felony conviction for aggravated assault in Hamilton County. These two prior convictions were predicates for career offender status under U.S.S.G. § 4B1.1.

Paragraph 52 of the PSR states that Sims was indicted by the state grand jury in Hamilton County, Tennessee on a charge of possessing .5 grams or more of cocaine with intent to sell or

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deliver. Sims pleaded guilty and was convicted on a lesser included offense of possession of less than .5 grams of cocaine, however, this felony conviction still maintains the element of distribution.

Sims had 18 criminal history points which placed him in criminal history category VI. Based on an offense level of 37 with a criminal history category VI, the advisory Guidelines sentencing range was 360 months to life imprisonment.

Counsel for Sims made objections to the PSR, only two of which impacted the computation of the Guidelines sentencing range. Sims objected to being classified as a career offender under U.S.S.G. § 4B1.1. Sims argued that his prior felony drug conviction should not count as a predicate controlled substance offense under U.S.S.G. § 4B1.1 because it was a conviction for mere simple possession that did not involve an element of distribution. The probation officer who prepared the PSR responded that the prior felony conviction in Hamilton County for possession of less than .5 grams of cocaine did contain an element of distribution under Tennessee law and it was properly considered as a predicate controlled substance offense under U.S.S.G. § 4B1.1. Addendum to PSR.

Next, Sims objected to the validity of the enhancement notice filed by the United States pursuant to 21 U.S.C. § 851. Sims argued that the statutory maximum sentence was less than 25 years and his offense level pursuant to U.S.S.G. § 4B1.1(b) should be 32. The probation officer who prepared the PSR responded that although the 21 U.S.C. § 851 notice of enhancement only referenced Count One of the indictment on which Sims was acquitted, Sims received sufficient notice that, if he were convicted on Counts Three and Six, his statutory maximum sentence under 21 U.S.C. § 841(b)(1)(B) was subject to enhancement.

During the sentencing hearing on April 17, 2007, this Court determined that the notice of enhancement pursuant to 21 U.S.C. § 851 was insufficient as to Counts Three and Six. The Court

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reduced the offense level to 34 resulting in an advisory Guidelines range of 262 - 327 months.

The Court denied the objection to the PSR by Sims challenging his classification as a career offender under U.S.S.G. § 4B1.1. The Court determined that the Class C felony conviction of Sims based on his guilty plea for possession of less than .5 grams of cocaine in violation of Tenn. Code Ann. § 39-17-417 included an element of distribution under Tennessee law, and it was properly considered a predicate offense under § 4B1.1. [Court Doc. No. 122, Transcript of Sentencing Hearing, pp. 10-16]. Sims was correctly sentenced as a career offender pursuant to U.S.S.G. § 4B1.1.

On April 17, 2007, this Court sentenced Sims to be imprisoned for a total term of 262 months at the bottom of the advisory Guidelines range. The sentence consists of 262 months imprisonment on Count Three and 12 months imprisonment on Count Six, to be served concurrently. The judgment of conviction was entered on April 19, 2007. [Court Doc. No. 112].

Sims took a direct appeal to the Sixth Circuit Court of Appeals raising two issues. First, Sims challenged the denial of his motion for new trial with regard to his aiding and abetting conviction on Count Three. Second, Sims argued that the District Court erred by classifying him as a career offender under U.S.S.G. § 4B1.1. The Sixth Circuit rejected both of these arguments. On September 10, 2008, the Sixth Circuit affirmed the judgment of conviction and sentence, and dismissed the appeal. United States v. Sims, 291 Fed. Appx. 772 (6th Cir. 2008).

With regard to the second issue raised on direct appeal, the Sixth Circuit stated:

Sims next contends that the district court erred in classifying him as a career offender under § 4B1.1 of the Guidelines by mischaracterizing one of his prior convictions as a "controlled substance offense." Sims argues that the conviction amounted to nothing more than simple possession. The district court, however, found that this conviction was a controlled-substance offense because it included an intent to distribute.

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But because Sims's brief does little more than assert that he is not a career offender, providing this panel with neither supporting reasoning, case law, nor reference to the record, we deem it waived. "[I]t is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation are deemed waived. United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (citing United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)). Although Sims does quote a portion of the Guidelines, he fails to address the relevant Tennessee statute. Even after the government filed a brief interpreting the Tennessee statute and explaining why Sims's conviction was a controlled-substance offense, Sims did not file a reply brief. Without more, Sims forfeits this argument on appeal.

Sims, 291 Fed. Appx. at 775.

Sims did not file a petition for writ of certiorari in the United States Supreme Court.

II. Standard of Review Under 28 U.S.C. § 2255

28 U.S.C. § 2255(a) provides that a federal prisoner may make a motion to vacate, set aside, or correct a judgment of conviction or sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the federal district court lacked jurisdiction to impose the sentence, or that the sentence is in excess of the maximum authorized by federal law, or is otherwise subject to collateral attack.

As a threshold standard to relief a § 2255 motion must allege: (1) an error of constitutional magnitude; (2) a sentence was imposed outside the federal statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire criminal proceeding invalid. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006); Pough...