Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lumpkin v. United States

United States District Court, N.D. Ohio, Eastern Division

June 27, 2019

Kevin R. Lumpkin, Petitioner,
v.
United States of America, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN UNITED STATES DISTRICT COURT CHIEF JUDGE

         INTRODUCTION

         This matter is before the Court upon Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 70). For the following reasons, Petitioner's motion is DENIED.

         FACTS

         Petitioner was indicted on August 26, 2015, on two counts of knowingly selling firearms to persons he knew or had reasonable cause to believe had been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(d)(1). Count 1 was based on his sale of a Hi-Point .45 caliber rifle to Calvin Kelly, and Count 2 was based on his sale of a Ruger .380 caliber pistol to Michelle Devine. A jury found Petitioner guilty of both counts. For sentencing purposes, this Court grouped the two counts and concluded that the advisory Sentencing Guideline range was 63 to 78 months of imprisonment. The Court sentenced Petitioner to 63 months of imprisonment on each count, to be served concurrently.

         Petitioner appealed, arguing that there was insufficient evidence for the jury to find that he had the requisite knowledge that Kelly and Devine had been convicted of a crime punishable by over a year of imprisonment, and that he received an unfair trial because the FBI agent told the jury that he did not believe Petitioner was telling the truth about the guns in question during a taped interview. The Sixth Circuit affirmed Petitioner's conviction on January 27, 2017. United States v. Lumpkin, 677 Fed.Appx. 992 (6th Cir. 2017). Petitioner did not file a petition for a writ of certiorari with the Supreme Court.

         On July 19, 2017, Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255. He argued in his first ground for relief that he was factually and legally innocent of Count 2 of the indictment because Devine was not prohibited from owning a firearm at the time Petitioner sold one to her. Petitioner also raised two additional grounds for relief. On January 18, 2018, this Court granted Lumpkin relief on the first ground raised in his motion, and denied relief on the remaining grounds. Accordingly, the Court vacated Petitioner's conviction on Count 2 of the indictment and scheduled a resentencing hearing.

         On April 19, 2018, the Court resentenced Petitioner. The Court found that although Petitioner's conviction on Count 2 had been vacated, his advisory Sentencing Guideline calculation on the remaining count had not changed. At the resentencing hearing, the Court restated the advisory calculations and stated that Petitioner's base offense level was 20, with two levels added under U.S.S.G. § 2K2.1(b)(1)(A), because the evidence at trial showed that Petitioner sold at least three firearms to Kelly. Four additional levels were added under Section 2k2.1(b)(5) because at least three firearms were sold. There was no acceptance of responsibility reduction. The Court found that Petitioner's total offense level was 26, and his Criminal History category was I, yielding an advisory Sentencing Guideline range of 63-78 months.

         Petitioner objected to the four-level enhancement under U.S.S.G. § 2K2.1(b)(5), given that one of his convictions had been overturned. The Court overruled his objection, holding that § 2K2.1(b)(5) still applied because Petitioner had sold at least three firearms to Kelly, and that it was the number of firearms sold to Kelly that dictated the application of the enhancement. Petitioner's counsel requested a sentence below the Guideline range. Petitioner also testified that he believed that the trial testimony and invalid conviction played a role in the guilty verdict on his other count, and reiterated his desire for a new trial. The Government requested that the Court impose the same 63-month sentence it previously imposed, which was at the low-end of the range. The Court again imposed a 63-month sentence on Count 1 of the indictment.

         Petitioner filed an appeal of his resentencing. He raised three issues on appeal: (1) the application of the four-level enhancement under U.S.S.G. § 2K2.1(b)(5); (2) the Court's failure to address whether Kelly was “an individual whose possession or receipt of the firearm would be unlawful” under U.S.S.G. § 2K2.1(b)(5); and (3) the Court's denial of an acceptance of responsibility reduction under U.S.S.G.§ 3E1.1. The Sixth Circuit affirmed the resentencing of Petitioner and found no error by the Court. United States v. Lumpkin, 751 Fed.Appx. 894 (6th Cir. 2019). Petitioner did not file a petition for a writ of certiorari with the Supreme Court. He now seeks relief pursuant to 28 U.S.C. § 2255. The Government opposes Petitioner's motion.

         ANALYSIS

         A federal prisoner may challenge a sentence if it “was imposed in violation of the Constitution or laws of the United States . . . or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. To prevail on a § 2255 motion, “the movant must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003). The petitioner has the burden of “sustaining [his] contentions by a preponderance of the evidence.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). A prisoner may not raise claims in a § 2255 motion that could have been raised on direct appeal unless he shows either: (1) good cause for failing to raise the claim earlier and actual prejudice, or (2) actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted).

         Petitioner raises nine grounds for relief in his motion. For the reasons discussed below, Petitioner is not entitled to relief on any of the grounds.

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.