United States District Court, D. Nebraska
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant Antoine Gaye's
(“Gaye”) Motion Pursuant to 28 U.S.C. § 2255
for Relief from a Sentence Imposed in Violation of the
Constitution and Laws of the United States (Filing No. 52).
Rule 4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts, the Court must perform an
initial review of Gaye's § 2255 motion. Unless
“it plainly appears from the face of the motion and any
annexed exhibits and the prior proceedings in the case that
the movant is not entitled to relief in the district court,
” the Court must order the United States Attorney to
respond to the motion. Id.
pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). He was sentenced to
120 months in prison. The government appealed Gaye's
sentence (Filing No. 43), claiming the Court erred in not
classifying Gaye as an armed career criminal under 18 U.S.C.
§ 924(e). The Eighth Circuit Court of Appeals upheld the
Court's ruling and dismissed the appeal (Filing No. 50).
Gaye did not appeal.
§ 2255 motion, Gaye raises two grounds for relief: (1)
he received ineffective assistance of counsel prior to
sentencing and (2) his presentence investigation report
(“PSR”) and resulting sentencing were defective
and his counsel was ineffective for failing to object to
those deficiencies at sentencing.
first ground, Gaye argues his attorney failed to do a
pretrial investigation “necessary to examine the facts
before advising” him and ineffectively advised him
during the plea-negotiations stage of his case. Gaye alleges
his counsel failed to investigate the circumstances
surrounding the repossession of his vehicle which led to the
discovery of the firearm. According to Gaye, if his counsel
would have interviewed the individual who recovered the
firearm during the repossession, she would have discovered
the individual was a former police officer who allegedly
investigated Gaye previously for an unrelated incident. Gaye
also asserts his counsel improperly advised him to plead
guilty because “he was guilty under a theory of
constructive possession, even if he had no knowledge of the
does not explain why he is entitled to relief based on his
counsel's conduct, but after initial review, “it
does not plainly appear the defendant is entitled to no
relief.” 28 U.S.C. § 2255, Rule 4(b). At this
early stage, summary dismissal is not required, and the
government must file a response to Gaye's first ground.
regard to Gaye's second ground, Gaye asserts that his
base offense level in his PSR was too high and the Court
relied on it in error at sentencing. Gaye's PSR included
a base offense level of 24 pursuant to § 2K2.1(a)(2) of
the United States Sentencing Guidelines
(“Guidelines”). Gaye contends his PSR
“impermissibly double counted [his] prior convictions .
. . since the law already uses the prior conviction to
determine him a felon.” According to Gaye, his base
offense level should have been 20 under §
2K2.1(a)(4)(A). Gaye argues because the Court failed to begin
his sentencing determination with a correct calculation of
the Guidelines, his sentence was “procedurally and
substantively unreasonable.” With that, Gaye asserts
his “counsel failed him miserably at sentencing”
by not objecting to this perceived deficiency.
claim fails. First, Gaye has not established that his claim
is procedurally sound. It is well-settled that “[a]
§ 2255 motion is not a substitute for direct
appeal.” Auman v. United States, 67
F.3d 157, 161 (8th Cir. 1995) (quoting United States v.
Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (per curiam)).
With a few exceptions, where a nonconstititional challenge to
a sentencing error is not raised on direct appeal, it cannot
be asserted in collateral proceedings. United States v.
McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996). Unless
Gaye can show he objected at or before sentencing or on
direct appeal, he cannot raise this issue for the first time
in these collateral proceedings.
assuming, without deciding, Gaye's claim is not
procedurally defective, his claim is not otherwise
cognizable. As explained by the Eighth Circuit,
Section 2255 “was intended to afford federal prisoners
a remedy identical in scope to federal habeas corpus.”
Davis v. United States, 417 U.S. 333, 343 (1974).
Like habeas corpus, this remedy “does not encompass all
claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 185
(1979). It provides a remedy for jurisdictional and
constitutional errors . . . . Beyond that, the permissible
scope of a § 2255 collateral attack on a final
conviction or sentence is severely limited; “an error
of law does not provide a basis for collateral attack unless
the claimed error constituted a fundamental defect which
inherently results in a complete miscarriage of
Sun Bear v. United States, 644 F.3d 700, 704 (8th
Cir. 2011) (en banc). Applying these principles, ordinary
questions of Guidelines interpretation, like the one
presented by Gaye, do not present a proper § 2255 claim.
See id.; Auman, 67 F.3d at 161.
Gaye's claim fails on the merits. Contrary to Gaye's
assertion, his base offense level was correctly calculated.
Under § 2K2.1(a)(2), a base offense level of 24 is
appropriate where the defendant has “at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” Gaye does not contest
that, as his PSR reflects, he was convicted of four prior
felonies. Two of those felony convictions- robbery and
attempted possession with intent to deliver marijuana-were
respectively a crime of violence and a controlled-substance
offense. See U.S.S.G. § 2K2.1, cmt. 1.
those felonies also make Gaye a prohibited person for the
offense of conviction-being a felon in possession of a
firearm-is beside the point and not “impermissible
double-counting.” Cf. United States v.
Saffeels, 39 F.3d 833 (8th Cir. 1994) (affirming
triple-counting a defendant's prior conviction to enhance
his sentence based on the mandatory minimum under 18 U.S.C.
§ 924(e)(1), determine his base offense level under
§ 2K2.1A9(a), and calculate his criminal history score
under the Guidelines). Prior ...