United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS UNITED STATES DISTRICT COURT JUDGE.
case comes before the Court on Defendant/Movant Earl Samuel
Walters' motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Walters is a
federal prisoner proceeding pro se.
the United States is required to respond, the Court must
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. A petitioner "who
is able to state facts showing a real possibility of
constitutional error should survive Rule 4 review."
Calderon v. United States Dist Court, 98 F.3d 1102,
1109 (9th Cir. 1996) ("Nicolas")
(Schroeder, C.J., concurring) (referring to Rules Governing
§ 2254 Cases). But the Court should "eliminate the
burden that would be placed on the respondent by ordering an
unnecessary answer." Advisory Committee Note (1976),
Rule 4, Rules Governing § 2254 Cases, cited in
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2255 Proceedings.
pled guilty to one count of conspiracy to possess a
controlled substance with intent to distribute it, a
violation of 21 U.S.C. §§ 846 and 841(a)(1). A
charge of being a felon in possession of a weapon was
dismissed pursuant to a plea agreement. Walters was sentenced
to serve 45 months and 15 days in prison, concurrent with a
North Dakota sentence, and followed by a three-year term of
supervised release. See Am. Judgment (Doc. 49) at
Claims and Analysis
asserts he should not have received a two-level enhancement
in his sentencing guideline calculation for possession of a
firearm. The enhancement applies "[i]f a dangerous
weapon (including a firearm) was possessed." U.S.S.G.
§ 2D1.1(b)(1) (Nov. 1, 2015). It "reflects the
increased danger of violence when drug traffickers possess
weapons" and "should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the [drug] offense." U.S.S.G. §
2D1.1 cmt. n.ll(A).
search of Walters' vehicle located small amounts of
marijuana and methamphetamine, $110, 000 in cash, and a
.22-caliber rifle and two pistols, one .40-caliber and one
.45-caliber, as well as several rounds of ammunition suitable
for weapons of these calibers. See Presentence
Report ¶¶ 11, 24. Although Walters insisted he only
accepted firearms as collateral for money debts, see
Change of Plea Tr. (Doc. 59) at 27:16-24, there is no reason
to suppose these debts were not drug debts, see
Presentence Report ¶¶ 95, 99-103. It was not
"clearly improbable" that the firearms in his
vehicle were connected to his drug trafficking.
is correct that the United States dismissed a felon in
possession charge pursuant to the plea agreement.
See Plea Agreement (Doc. 37) at 2 ¶ 2; 18
U.S.C. § 922(g)(1); Presentence Report ¶¶ 41,
43-48, 51, 53 (listing nine felony convictions). But its
dismissal is not relevant to the enhancement under U.S.S.G.
§ 2D 1.1 (b)(1). The enhancement has long applied even
to people who are never charged with felon in possession or
any other crime connecting drug trafficking with firearms.
See, e.g., United States v. Restrepo, 884 F.2d 1294,
1295-96 (9th Cir. 1989).
v. Colorado, __ U.S. __, 137 S.Ct. 1249, 1252 (2017),
cited in Supp. (Doc. 60) at 1-2, has no bearing on
§ 2D 1.1 (b)(1) of the guidelines. The enhancement does
not depend on a conviction or even a charge, and dismissal of
a charge is not an acquittal or a decision that a conviction
is or would be invalid.
it is not clear Walters meant to make a claim for relief on
speedy trial grounds, his papers suggest he believes his
right to a speedy trial was violated. See, e.g.,
Mot. § 2255 ...