United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the court for initial review of Filing No.
108, a Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal
Custody(“§ 2255 motion”) and
supporting memorandum (Filing No. 109) filed by the
Defendant, Kevin Yale (“Yale”) pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015).
Also before the Court is a Motion to Withdraw as Attorney
(Filing No. 112) filed by the Federal Public Defender.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
defendant's § 2255 motion. Rule 4(b) states:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
pleaded guilty to Count I of the Indictment charging him with
conspiracy to distribute and possess with intent to
distribute at least 500 grams of methamphetamine. The parties
entered into a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) in which they agreed that Yale should
be held responsible for at least 1.5 but less than 5
kilograms of a substance containing methamphetamine,
resulting in the application of base offense level 34.
(Filing No. 52, ¶ 5.)
January 26, 2006, he was sentenced to 262 months imprisonment
and 5 years supervised release. (Filing No. 64.) On direct
appeal, defense counsel filed a brief under Anders v.
California, 386 U.S. 738 (1967). On February 7, 2007,
the Eighth Circuit Court of Appeals issued a per curiam
opinion affirming his sentence, finding no nonfrivolous
issues, and granting defense counsel's motion to
withdraw. (Filing No. 82.) On March 30, 2007, the Eighth
Circuit denied Yale's petition for rehearing. (Filing No.
discussed in the footnote, above, Yale filed a § 2255
motion (Filing No. 87) on February 1, 2008, and that motion
was dismissed on February 11, 2009 (Filing No. 88). Yale
filed a successive § 2255 Motion (Filing No. 92) on
December 1, 2011, and that motion was denied on December 6,
2011, at Filing No. 93. Yale petitioned the Eighth Circuit
for authorization to file a successive § 2255 Motion and
that request was denied (Filing No. 97). On November 24,
2014, at Filing No. 101, Yale moved the court for a reduction
in sentence seeking relief under Amendment 782 to the United
States Sentencing Guidelines. Appointed counsel filed an
Unopposed Motion to Reduce Sentence (Filing No. 105) and
Stipulation (Filing No. 106). On December 17, 2015, the Court
reduced Yale's previous sentence from 262 months to 210
months (Filing No. 107).
Federal Public Defender has reviewed Yale's case in
connection with his pending § 2255 Motion; determined
that the Defendant had no prior conviction that was used to
enhance his sentence; and concluded that the Johnson
decision is not applicable to his case. The Court has also
reviewed the matter, including Yale's Presentence
Investigation Report (“PSR”) (“Filing No.
60). The PSR reveals that the Defendant did not receive a
sentencing enhancement due to a prior crime of violence.
IT IS ORDERED:
Court has completed initial review of the Defendant's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody
(“§ 2255 motion”) (Filing No. 108);
Court summarily denies the Defendant's § 2255
separate Judgment will be issued denying the § 2255
Motion to Withdraw (Filing No. 112) filed by the Federal
Public Defender is granted; and
Clerk is directed to mail a copy of this Memorandum and Order
to the ...