United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
Before the court is Bernardo Lee Tignor's ("Tignor") motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
I. BACKGROUND AND PROCEDURAL HISTORY
In August 2005, Tignor pled guilty under a plea agreement to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 1), and possession of a firearm with an altered serial number, in violation of 18 U.S.C. § 922(k) (Count 2). On February 21, 2006, upon finding Tignor had three prior convictions for violent felonies, the district court sentenced Tignor under the Armed Career Criminal Act ("ACCA") to 15 years in prison, the minimum sentence under the ACCA. See 18 U.S.C. § 924(e)(1). Tignor took no direct appeal.
On March 3, 2009, Tignor filed a motion under 28 U.S.C. § 2255, see Tignor v. United States, Civil Action No. 3:09cv291-WHA, seeking to vacate, set aside, or correct his sentence based on the 2008 Supreme Court decision in Begay v. United States, 553 U.S. 137 (2008), which Tignor argued rendered his sentence under the ACCA erroneous. Specifically, Tignor argued that, under Begay, the district court erred by counting his prior conviction for felony DUI as a "violent felony" under the ACCA. Tignor contended he should be resentenced without application of the ACCA enhancement.
On October 7, 2011, this court granted Tignor's § 2255 motion "to the extent that [Tignor] challenges his sentence as an armed career criminal under the ACCA, and asks that he be re-sentenced without the ACCA and with the benefit of any applicable reduction." Civil Action No. 3:09cv291-WHA, Doc. No. 53 at 1-2.
On November 30, 2011, the district court held a resentencing hearing. The court determined that, without application of the ACCA, Tignor's base offense level was 24, his total offense level was 23, and his criminal history category was VI, resulting in an advisory guideline range of 92 to 115 months' imprisonment. See Case No. 3:05cr71-WHA, Doc. No. 55. The court sentenced Tignor at the low end of the applicable guideline range, 92 months, which was contemplated under the plea agreement if it was determined Tignor was not subject to sentencing under the ACCA. Tignor filed no appeal of his resentencing.
On July 12, 2012, Tignor filed the present § 2255 motion in which he argues that (1) the 92-month sentence imposed at resentencing was improper because, he says, the plea agreement called for a sentence of 5 years' imprisonment if it was determined he was not subject to sentencing under the ACCA, and (2) his lawyer at resentencing rendered ineffective assistance of counsel by failing to object to the district court's calculation of his new sentence. See Doc. Nos. 1, 3 & 12.
After consideration of Tignor's § 2255 motion, the submissions supporting and opposing the motion, and the record, the court concludes that an evidentiary hearing is not required and that, under Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.
A. Terms of the Plea Agreement
There is no merit to Tignor's claim that the plea agreement called for a sentence of 5 years if it was determined he was not subject to sentencing under the ACCA. Doc. Nos. 1 & 3.
The plea agreement stated the following understanding between the parties regarding sentencing:
b. The government will agree, pursuant to Rule 11(c)(1)(c), that if the Court determines that the defendant is to be sentenced pursuant to 18 U.S.C. § 924(e), the defendant will receive the lowest sentence possible under the statute. The government further agrees that if the defendant is determined not to be an armed career criminal, the defendant will receive a ...