CHARLES C. LOVELL, Senior District Judge.
Before the Court is Defendant William Lapp's Motion to Vacate, Set Aside, or Correct Conviction and Sentence Pursuant to 28 U.S.C. § 2255.
Section 2255 Standard
A prisoner is entitled to relief under 28 U.S.C. § 2255 "[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack...." 28 U.S.C. § 2255. However, it is the prisoner's burden to establish his claims, and the prisoner must "clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Where the prisoner has failed to raise his claims on direct appeal, he must also demonstrate that (1) good cause exists for his failure to raise his arguments and he would suffer prejudice if unable to proceed, or (2) he is actually innocent. Id. Defendant Lapp makes no claim that he is actually innocent. Normally a procedural default is addressed first, but when resolution on the merits is easily accomplished, it is permitted. Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 1523, 137 L.Ed.2d 771 (1997).
This motion is subject to preliminary review to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is met, neither hearing nor government response is necessary. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).
Lapp specialized in closing-time robberies in small Montana casinos, apparently in order to take advantage of the lone female attendant working in those casinos at closing time. Just prior to two of the robberies, Lapp presented his driver's license to the attendant in order to purchase alcohol. Three of the attendants positively identified Lapp from a photo lineup. All four attendants saw Lapp's.357 Ruger revolver. One attendant specifically asked Defendant Lapp not to kill her. Defendant Lapp told another attendant that he did not want to hurt her, but he would if he had to. At the conclusion of the first robbery, Lapp forced the lone attendant out into the alley behind the casino, and he followed her out, so the attendant was afraid Lapp was going to shoot her. At the conclusion of the other three robberies, Lapp forced the lone attendant into a bathroom and told each one to count to 100 before coming out. All four attendants were put in fear of their lives.
The first robbery was on July 29, 2009, at the First Avenue Casino, in Kalispell, Montana. Lapp pointed a large-caliber, silver revolver at the lone attendant, who gave Lapp $1, 700. (Doc. 13 at 4, ¶ 2.) The second robbery was on August 3, 2009, at the River City Casino in Great Falls, Montana. Lapp showed his identification to the attendant when he ordered a beer. Lapp laid his handgun on the bar. Lapp demanded the money in the till, and the attendant gave him $5, 700. (Doc. 13 at 5-6, ¶ 3.) The third robbery was on September 26, 2009, at the Chances R Casino in Butte, Montana. Lapp entered the casino just as it was closing, pointed his handgun at the female attendant, and received $3, 000. (Doc. 13 at 7-8, ¶ 4.) The fourth robbery was on October 24, 2009, at the Bull's Eye Casino in Helena, Montana. The attendant asked Lapp for identification, and Lapp showed her his Montana driver's license. The attendant remembered that the name on the driver's license was Lapp or Ladd. Lapp showed the attendant the gun in his waistband, and she gave him $6, 000. (Doc. 13 at 8-10, ¶ 5.)
When Lapp's residence was searched by his state probation officer, the cash box from the Helena casino was found, including a check payable to the Helena casino. Lapp's.357 Ruger revolver, which was loaded with six rounds of ammunition, was also found during the search, in addition to receipts from the casinos for beer or liquor. (Doc. 13 at 10.)
Lapp fully admitted and affirmed the government's recitation of facts from its Offer of Proof during the change-of-plea ("COP") hearing (which the Court has summarized above). There can no doubt that Lapp actually committed the crimes of conviction and was properly sentenced therefor.
Defendant's Plea and Sentencing
Defendant Lapp was sentenced to 40 years of imprisonment for committing four separate armed robberies of four Montana casinos. Defendant Lapp pleaded guilty to six counts of a ten-count Indictment. Four of those counts (Counts 1, 3, 5, and 7) charged Lapp with "Robbery Affecting Commerce, " in violation of 18 U.S.C. § 1951. Two of those counts (Counts 2 and 4) charged Lapp with "Use of a Firearm During a Crime of Violence, " in violation of 18 U.S.C. § 924(c)(1)(A) (ii). The four counts that were dismissed were two additional firearm counts, a felon-in-possession count, and a count charging possession of a stolen firearm. Had Defendant pleaded guilty to all four firearms counts instead of only two, his mandatory minimum sentence would have been 82 years, to be served consecutively to the terms of imprisonment imposed as to the four robbery counts. In summary, Lapp pleaded guilty to each of the four casino robberies and to only two out of the four gun charges arising from those robberies.
The mandatory minimum sentence applicable to the two firearms counts (Counts 2 and 4) was a term of thirty-two years (seven years as to Count 2, followed by 25 years as to Count 4), to be served consecutively to the term of imprisonment imposed as to the robbery counts. During the COP hearing, the Court specifically noted that the thirty-two year mandatory minimum applied only to Counts 2 and 4.
At the time of the COP hearing, the Court engaged Lapp in a proper Rule 11 colloquy, informing Lapp (as did the written Plea Agreement) that a guideline range would be calculated prior to sentencing using the advisory United States Sentencing Guidelines. The Court inquired whether the proffered pleas were motivated by any threats or direct or implied promises or improper influences, and Lapp responded that there were no such threats or promises. The Court inquired whether Lapp had reviewed his Plea Agreement with his attorney and had an opportunity to question his attorney about the agreement and his rights. The Court verified that there were no secret agreements with the government affecting the leniency of the sentence that were not disclosed to the Court. Lapp answered in the affirmative on all points and also stated that he was satisfied with his attorney's representation. The Court concluded that Lapp's guilty pleas were voluntary and were entered knowingly and intelligently. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). All these statements and affirmations made by Defendant ...