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United States v. Russell

United States District Court, D. Nebraska

January 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON R. RUSSELL, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 188, filed by the Defendant, Aaron R. Russell (“Russell”). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

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.

         FACTUAL BACKGROUND

         On June 29, 2015, Russell entered a plea of guilty to Count II (Bank Robbery), Count III (Using, Carrying, or Brandishing a Firearm During a Crime of Violence), and Count VI (Attempted Credit Union Robbery), of the Superseding Indictment. Russell signed his plea petition under oath, stating that he was satisfied with the performance of his attorney, and he was guilty of the offenses. Russell's answers given under oath at his change of plea hearing corroborated the answers in his petition. In his plea agreement, he waived his right to appeal, and did not file any direct appeal. On September 28, 2015, this Court accepted the parties' plea agreement, entered into pursuant to Fed. R. Crim. P. 11(c)(1)(C), and sentenced Russell to a term of incarceration of 96 months on Counts II and VI, to run concurrently, and 84 months on Count III to run consecutively, for a total of 180 months incarceration, as stipulated to by the parties in the plea agreement. The Court also imposed a term of two years supervised release on all three Counts, to run concurrently.

         Russell timely filed his § 2255 motion, arguing: (1) his sentence violated his constitutional right to be free from double jeopardy under the Fifth Amendment to the United States Constitution, (2) he was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution, and (3) a statute under which he was convicted was unconstitutionally vague, creating a violation of the Due Process Clause of the Fifth Amendment to the United States Constitution.

         DISCUSSION

         Ground One: Double Jeopardy

         Russell contends that his conviction and sentence on Count III, for carrying, using, or brandishing a firearm in connection with a crime of violence, constitutes double jeopardy because he also received a sentencing enhancement on his guideline calculation, due to his use of a firearm in connection with a felony offense.

         Although Russell's argument may be deemed moot in light of his Rule 11(c)(1)(C) plea agreement and the stipulated sentence, his factual premise is also incorrect. The record reflects that the Presentence Investigation Report (“PSR”), ECF No. 161, applied no enhancement to the calculation of the sentencing guideline for Count II based upon Russell's carrying, use, or brandishing of a firearm. The PSR states:

Because the defendant was convicted of 18 U.S.C. § 924(c)(1)(A)(ii) on Count III of the Superseding Indictment, a five-level enhancement for brandishing a firearm, pursuant to USSG § 2B3.1(b)(2)(C), was not applied in the guideline calculation of Count II. See Application Note 4 of USSG § 2K2.4.

Id. ¶ 50, Page ID 416.

         While Russell did receive a five-level enhancement on his guideline calculation for Count VI, pursuant to USSG § 2B3.1(b)(2)(C), because a firearm was possessed during the attempted robbery of the Metro Credit Union, Count VII of the Superseding Indictment, charging him with the separate offense of carrying, using, or brandishing a firearm in connection with the attempted Credit Union robbery, was dismissed pursuant to the Plea Agreement. Accordingly, the calculation of Russell's sentencing guideline for Count VI would not give rise to any claim for relief under the Double Jeopardy Clause, even if he had been sentenced pursuant to the guidelines and not the Rule 11(c)(1)(C) plea agreement.

         Russell's first ground for his 2255 Motion, based on an alleged violation of his rights under the Double Jeopardy ...


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