Opinion
Case Nos. C4-02-81, A4-05-64.
June 27, 2005
Before the Court is Warren Olson's "Motion to Vacate, Set Aside or Correct Sentence Based on the Booker v. U.S. — S. Ct. — (2005) Decision and Ineffective Assistance of Counsel Motion." For the reasons set forth below, the Court denies the motion.
On September 13, 2002, Warren Olson was charged in an indictment with the offense of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), 924(a)(2), and 924(e). On January 2, 2003, Olson pled guilty to the offense of possession of a firearm by a convicted felon. There was no plea agreement between the parties.
The Presentence Investigation Report (PSR) calculated a total offense level of 30 and criminal history category IV, yielding a Sentencing Guideline range of 135-168 months. See PSR, p. 20. The base offense level was 24 and there were no enhancements based on offense conduct. However, because of Olson's criminal history, the provisions of U.S.S.G. § 4B1.4 (armed career criminal) applied and subjected Olson to an enhanced sentence under the provisions of 18 U.S.C. § 924(e). 18 U.S.C. § 924(e) mandates that a person who violated 18 U.S.C. § 922(g) and has three prior convictions for a violent felony or a serious drug offense, or both, shall be imprisoned for not less than 15 years. The PSR concluded that Olson had three previous convictions for a violent felony including an armed robbery in Towner County District Court in North Dakota on August 27, 1980; a felony offense of escape in United States District Court for the District of North Dakota on July 7, 1987; and a burglary in Bottineau County District Court on July 19, 1991. Under U.S.S.G. § 4B1.4(b)(1), Olson's base offense level was elevated to 33. A three-level downward departure was contemplated under U.S.S.G. § 3E1.1(a) for "acceptance of responsibility." See PSR, p. 5.
Olson's prior convictions, along with each conviction's assigned guideline score, were included in the PSR. The prior convictions that resulted in a guideline score are as follows: Larceny Theft — 3 points; Burglary — 1 point; No Liability Insurance — 1 point; and Forgery — 1 point. In addition, two points were added under U.S.S.G. § 4A1.1(d) for committing the present offense while on probation. This resulted in a total of 8 criminal history points, which placed Olson at a criminal history category IV. See PSR, pp. 6-11. The PSR calculated the sentencing range of 135-168 months, but recommended the mandatory minimum sentence of 15 years imprisonment in accordance with 18 U.S.C. § 924(e).
At the sentencing hearing on May 5, 2003, Olson's attorney moved for a downward departure under U.S.S.G. § 4A1.3(b) and asserted that Olson's criminal history category substantially over-represented his criminal history. The Government stated that it had no objection to a downward departure, and the Court granted Olson's motion and determined Olson's criminal history was better represented at a Category III level. After the downward departure, the Sentencing Guideline range of imprisonment was 121-151 months. The Court sentenced Olson to 121 months imprisonment. Judgment was entered on May 6, 2003. Neither Olson nor the Government pursued an appeal of the conviction or sentence.
On May 20, 2005, Olson's filed a pro se motion for habeas relief. In his motion, Olson sets forth several reasons why his sentence should be vacated, set aside or corrected: (1) since his sentencing, the Sentencing Guidelines have been ruled unconstitutional by Booker v. U.S., (2) his prior conviction were used to improperly "enhance" his sentence, (3) he was intoxicated at the time of the offense and could not form the specific intent to possess the firearm, (4) he received ineffective assistance of counsel, (5) he was threatened to plead guilty, (6) he innocently possessed the firearm, (7) his conduct did not warrant a 121-month sentence, and (8) his prior convictions should not be used to enhance his sentence because the robbery conviction took place when he was seventeen years old and the walk-away from a halfway house conviction did not involve any type of violence. Olson's assertions fall into two general categories: those assertions regarding his conviction and those regarding his sentence.
The Court has reviewed the motion as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings. Section 2255 motions are subject to the following period of limitations:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
The Court concludes that Olson's assertions regarding his conviction are untimely. In this case, Olson was sentenced on May 5, 2003, and judgment was entered on May 6, 2003. Olson did not seek further review of his conviction on direct appeal. Thus, Olson had a one-year period of limitation running from 90-days after the date on which the judgment of conviction became final.See 28 U.S.C. § 2255; Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999) (holding the time for filing a habeas petition must include a 90-day period within which a petitioner may file a writ of certiorari to the United States Supreme Court). It is clear that Olson's petition is untimely.
Olson also argues that the United States Supreme Court's recent pronouncement in United States v. Booker, 543 ___ U.S. ___, 125 S.Ct. 738 (2005), necessitates a reduction of his sentence. InUnited States v. Booker, the Supreme Court found that its holdings in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), apply to the federal Sentencing Guidelines. Therefore, the Sixth Amendment is violated by the imposition of an enhanced sentence under the Sentencing Guidelines based on a judge's determination of fact, other than a prior conviction, that was not found by a jury or admitted by the defendant. Id. The Supreme Court reaffirmed its holding in Apprendi, that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. at 756.
It is well-established that courts may take into account the fact of a prior conviction without the use of a jury. See Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). In other words, the fact of a defendant's prior convictions does not require a jury determination in order to support a sentencing enhancement or increase in a defendant's sentence. The fact of a prior conviction is for the Court to determine not a jury. United States v. Nolan, 397 F.3d 665, 667 (8th Cir. 2005). The PSR established that Olson fell within a criminal history category IV. The Court then granted a motion to depart downward and sentenced Olson based on a criminal history category III. It is clear that such a calculation does not run afoul of the Sixth Amendment orBooker. In summary, Olson's case is unaffected by the Supreme Court's pronouncements in Booker, because a judge may increase or decrease a sentence based on a defendant's prior convictions.
The Court DENIES Olson's "Motion to Vacate, Set Aside or Correct Sentence Based on the Booker v. U.S. — S. Ct. — (2005) Decision and Ineffective Assistance of Counsel Motion." (Docket No. 33). The Court certifies that an appeal from the denial of this motion may not be taken in forma pauperis because such a appeal would be frivolous and cannot be taken in good faith.Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Based upon the entire record before the Court, dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). Therefore, a certificate of appealability will not be issued by this court.
The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
IT IS SO ORDERED.