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Mims v. United States

United States District Court, N.D. Alabama, Eastern Division

June 1, 2017

JARVIS LAMAR MIMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 1:14-CR-0081-SLB-JHE

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE.

         This case is presently pending before the court on petitioner Jarvis Lamar Mims's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [hereinafter Motion to Vacate]. (Doc. 1; crim. doc. 38.)[1] Mims contends that his prior convictions for unlawful distribution of a controlled substance and for first degree possession of marijuana were improperly used to enhance his sentence under the Armed Career Criminal Act [“ACCA”], 18 U.S.C. § 924(e). Because Mims's claims are without merit, the court assumes that his Motion to Vacate is timely filed and is not procedurally barred. For the reasons set forth below, the court finds that Mims's Motion to Vacate is due to be denied and his petition is due to be dismissed without requiring the Government to respond. See 28 U.S.C. 2255(b).[2]

         I. BACKGROUND

         On March 26, 2014, the United States filed an Indictment against Mims. (Crim. Doc. 1.) The Indictment charged Mims with a single count:

On or about the 13th day of October, 2013, in Talladega County, within the Northern District of Alabama, the defendant,
JARVIS LAMAR MIMS,
after having been convicted on November 20, 2003, in the Circuit Court of Talladega County, Alabama, of the offense of Unlawful Possession of Marijuana, 1st Degree, in case number CC 2003 000454; and after having been convicted on November 24, 2009, in the Circuit Court of St. Clair County, Alabama, of the offense of Unlawful Distribution of a Controlled Substance, in case number CC 2009-000358; and after having been convicted on November 24, 2009, in the Circuit Court of St. Clair County, Alabama, of the offense of Unlawful Distribution of a Controlled Substance, in case number CC2009 000359; and after having been convicted on November 24, 2009, in the Circuit Court of St. Clair County, Alabama, of the offense of Unlawful Distribution of a Controlled Substance, in case number CC2009 000360, each of the said offenses being a crime punishable by a term of imprisonment exceeding one year, did knowingly possess in and affecting commerce a firearm, that is, a Smith and Wesson .38 caliber pistol, in violation of Title 18, United States Code, Section 922(g)(1).

(Crim. doc. 1.)

         Mims pleaded guilty. (See crim. doc. 29.) At the plea hearing, the following discussion occurred between the court and Mims:

THE COURT: So, Mr. Mims, it appears that you may be subject to an enhanced penalty here under the [ACCA], and both your lawyer and the government think that you probably are subject to this. Do you understand what I just said?
THE DEFENDANT: Yes, ma'am.
THE COURT: So if you are subject to the enhanced penalty, or a worse penalty, I guess you could say, a longer sentence, then the maximum sentence you're facing by pleading guilty today, the maximum sentence you're facing is a fine of not more than $250, 000, a custodial sentence of not less than 15 years . . ., a supervised release time of not more than five years, an assessment fee of $100.
So do you understand that . . . is likely, very likely, the sentence you're facing, not less than 15 years in custody and a $250, 000 fine? Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: Now, if you are not subject - and whether you're subject to that penalty or not depends on the number and kind of prior felony convictions you have, and they have here convictions that appear to me also to subject you to that penalty, but I won't decide that until the time of sentencing.
But if you are not subject to that enhanced penalty, then you're facing a fine of not more than $250, 000, a custodial sentence of not more than ten years, a supervised release time of not more than three years and an assessment fee of $100.
So do you understand what I just said to you what your sentence would be if you're not subject to that enhanced penalty?
THE DEFENDANT: Yes, ma'am.
THE COURT: But, again, I just want to make sure you understand that it appears at this time that you're pleading guilty to a crime that would cause the penalty that you're facing, based on your prior record, the custodial portion of that sentence would be not less than 15 years. Do you understand?
THE DEFENDANT: Yes, Your Honor.

(Crim. doc. 29 at 7-9.)

         Prior to sentencing the Probation Office prepared a Presentence Investigation Report [PSR], which noted four prior convictions for drug offenses: “a prior conviction for Possession of Marijuana, 1st Degree, in Talladega County Circuit Court case number CC 03-454, and three prior convictions for Unlawful Distribution of a Controlled Substance in St. Clair County Circuit Court case numbers CC 09-358, CC 09-359, and CC 09-360.” (Crim. doc. 17 at 7.) For purposes of the United States Sentencing Guidelines [USSG] § 4A1.2, [3] the St. Clair County convictions were considered a “single sentence with each other because there was not an intervening arrest and the sentences were imposed on the same day.” (Id.) However, “Because the St. Clair County Circuit Court cases occurred on different occasions, separated by several days, they have been properly counted as separate and distinct predicate offenses, notwithstanding the fact that they were counted as a single sentence under the provisions of USSG § 4A1.2(a)(2).” (Id. at 8 [emphasis added].) The PSR noted that Mims was an armed career criminal, and he was subject to an enhanced sentence under 18 U.S.C. § 924(e)(1). (Id. at 7-8.)

         After entering his plea but before sentencing, Mims sought to have his counsel removed. (Crim. doc. 14.) At the hearing on Mims's Motion, the following discussion occurred:

[THE COURT:] Mr. Mims, if you would express to me the problems that you say you're having. I've read your motion, but tell me what the issue that you have with Mr. Threatt is and let me see what the problem is.
. . .
THE DEFENDANT: I had asked for some objections [to] my [PSR], and they never had been done.
THE COURT: Okay. Tell me what they are. Tell me what objections, because he cannot make objections - well, I say he cannot. He has to have a good faith basis to make the objection. So if you want to tell me what those objections are.
. . . Is there anything else other than that?
THE DEFENDANT: No, ma'am.
THE COURT: You were just upset that he did not make some objections to the PSR?
THE DEFENDANT: Yes, ma'am.
THE COURT: What did you want him to object to?
THE DEFENDANT: The main one is Paragraph [30].[4]
. . .
THE COURT: Paragraph 30. . . . What is it that you wanted him to object to about that because under the law - in other words, these are the convictions that caused you to be classified as an armed career criminal, and they do increase your guidelines greatly as you know.
Has he explained that to you?
THE DEFENDANT: Yes, ma'am.
THE COURT: But what is the basis that you wanted him to object to this?
THE DEFENDANT: The distributions.
THE COURT: Wait a minute. Were you convicted on three counts of unlawful distributions as set forth in CC-09-358, 09-359 and 09-360?
THE DEFENDANT: Yes, ma'am.
THE COURT: You were convicted of that, of three different cases ...

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