United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is defendant's Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (Dkt.
# 200). Defendant violated his conditions of supervised
release, and he was sentenced to a term of imprisonment. Dkt.
## 197, 199. He claims that his sentence for violations of
conditions of supervised release exceeded the maximum
authorized sentence, and he asks the Court to reduce his
sentence to 24 months imprisonment. Dkt. # 200. The Court has
reviewed defendant's § 2255 motion and finds that it
is unnecessary for plaintiff to file a response.
December 17, 2003, a magistrate judge signed a complaint
charging defendant with aiding and abetting a robbery in
violation of 18 U.S.C. § 1951 (Hobbs Act). Dkt. # 1.
Defendant was arrested in Arkansas and brought to this Court
under Fed. R. Crim. P. 5. At defendant's initial
appearance, counsel was appointed to represent defendant, and
defense counsel filed a motion for a competency determination
shortly after the initial appearance. Dkt. ## 2, 4. While
defendant was awaiting a competency evaluation, a grand jury
returned an indictment charging Eugene Green, Darvell Sherrod
Green, and defendant with conspiracy to commit Hobbs Act
robbery (count one), Hobbs Act robbery (count two), carrying
and brandishing a firearm during and relation to a crime of
violence (count three), and conspiracy to commit an offense
against the United States (count four). Dkt. # 14. On June 4,
2004, the Court entered an order finding that defendant was
suffering from a mental disease or defect rendering him
incompetent to stand trial, and he was remanded to custody of
the United States Attorney General until he was restored to
competency. Dkt. # 50.
more than a year of treatment, the Court held a competency
hearing on September 7, 2005 and found that defendant was
competent to stand trial. Dkt. ## 102, 104. On December 27,
2005, defendant appeared before the Court and changed his
plea to guilty as to counts two and three of the indictment.
The Court sentenced defendant to a term of 57 months
imprisonment as to count two and 84 months as to count three,
and the sentences were ordered to run consecutively to one
another. Dkt. # 129. This resulted in a total term of
imprisonment of 141 months. The Court imposed a three year
term of supervised release as to count two and five years as
to count three, and the terms of supervised release were to
run concurrently. Id.
served his term of imprisonment and was released, and he was
placed under the supervision of the United States Probation
Office. On January 3, 2016, defendant was arrested by the
Tulsa Police Department (TPD) for possession of an air pistol
and possession of a cellular phone while in jail. Dkt. # 151.
Defendant was not immediately taken into federal custody
after a warrant was issued for his violations of his
conditions of supervised release, and he did not make an
initial appearance as to the alleged violations until August
25, 2016. On August 30, 2016, defendant appeared before the
undersigned and stipulated that he possessed a cellular phone
in the county jail and had used methamphetamine. Dkt. # 164.
The Court sentenced defendant to six months imprisonment as
to counts two and three for violating his conditions of
release, each sentence to run concurrently, and the Court
imposed thirty month terms of supervised release as to each
count following defendant's release. Dkt. # 170.
served his six month term of imprisonment and was released.
On August 17, 2017, defendant and his girlfriend robbed a
bank and were arrested by the TPD on a charge of armed
robbery. Dkt. # 175, at 12. The probation office filed a
petition for warrant that also identified other violations of
defendant's conditions of supervised release, and a
warrant was issued for defendant's arrest. Dkt. ## 175,
176. On November 29, 2017, defendant was arrested and made
his initial appearance as to the alleged violations of his
conditions of supervised release. Defendant stipulated to the
violations without admitting his guilt to the bank robbery.
Dkt # 194. Defendant was also charged in a separate criminal
case with bank robbery. United States of America v. Edd
Tawon Payne and Manuel Peter Britto, III, 17-CR-140-CVE
(N.D. Okla.). Defendant pled guilty to the charge of bank
robbery and he was sentenced to 46 months imprisonment for
that crime. As to defendant's supervised release
violations, the Court also sentenced defendant to 24 months
imprisonment and 40 months imprisonment on counts two and
three respectively, and these terms of imprisonment were
ordered to run concurrently with each other. However, the
sentence for the violations of supervised release was ordered
to run consecutively to the 46 month sentence imposed for the
argues that his sentence for violations of his conditions of
supervised release exceeds the maximum sentence that could be
imposed, and he seeks relief under § 2255. Defendant did
not file a direct appeal challenging the revocation
sentencing and his revocation sentence became final on
December 10, 2018 when his deadline to file an appeal
expired. United States v. Loiseau, 2018 WL 2124092
(E.D. Va. May 8, 2018) (explaining timeliness of § 2255
motions challenging a revocation sentence). The Court finds
that defendant's § 2255 motion was filed within one
year of the date his revocation sentence became final, and
his motion is timely under § 2255(f)(1). Defendant has
not previously filed a § 2255 motion and there is no
concern that defendant's current motion could be treated
as a second or successive § 2255 motion.
claims that he was serving 30 months of supervised release as
to counts two and three, and he argues that he already served
a six month term of imprisonment for violations of his
conditions of supervised release. Dkt. # 200, at 1. Defendant
claims that he could not be sentenced to more than 24 months
imprisonment for any subsequent violations of his conditions
of supervised release. Id. Defendant's motion is
based on an inaccurate assessment of his sentence and a
misunderstanding of the applicable law. Defendant's
original sentence included a 3 year term of supervised
release as to count two and a 5 year term of supervised
release as to count three. After defendant violated his
conditions of supervised release, he was sentenced to six
months imprisonment, and 30 month terms of supervised release
were re-imposed as to counts two and three. Dkt. # 170.
Defendant did not challenge this sentence by means of a
direct appeal or § 2255 motion, and any attempt to do so
now would be untimely. Defendant served his six month term of
imprisonment and was again placed on supervised release for
terms of 30 months concurrent as to counts two and three, and
defendant committed a bank robbery after he was released from
his six month imprisonment. Count three of the indictment
carries a maximum penalty of life imprisonment and is
classified as a class A felony under 18 U.S.C. § 3559
and, as a statutory matter, defendant may be sentenced to up
to 5 years imprisonment for a violation of his conditions of
release as to count three. 18 U.S.C. § 3583(e)(3). Bank
robbery is a federal and state offense for which he can be
punished by a term of imprisonment exceeding one year, and
this is a grade A violation of his conditions of supervised
release. United States Sentencing Guidelines § 7B1.1.
Defendant received a sentence of 24 months imprisonment as to
count two and 40 months as to count three. Dkt. # 199. These
sentences were ordered to run concurrently with each other
and consecutively to the sentence imposed in No.
17-CR-140-CVE. No. term of supervised release was re-imposed
in this case. Dkt. ## 197, 199.
appears that defendant believes that any term of imprisonment
for violations of conditions of supervised release cannot
exceed the maximum term of supervised release that can
re-imposed following a term of imprisonment on a revocation
sentencing. Dkt. # 200, at 1. This argument represents a
fundamental misunderstanding of the applicable law: he is
confusing terms of imprisonment with terms of supervised
release. There is an aggregation requirement as to the term
of supervised release that may be imposed following
a revocation sentencing, and “the amount of supervised
release a district court can impose as part of any revocation
sentence is limited to ‘the term of supervised release
authorized by statute for the offense that resulted in the
original term of supervised release, less any term of
imprisonment that was imposed upon revocation of supervised
release.'” United States v.
Hernandez, 655 F.3d 1193, 1198 (10th Cir. 2011) (citng
18 U.S.C. § 3583(h)). However, each violation of
conditions of supervised release is treated as a separate
“breach of trust, ” and the sentencing judge may
impose a term of imprisonment up to the maximum
authorized in § 3583(e)(3) for each violation.
United States v. Porter, 905 F.3d 1175, 1182 (10th
Cir. 2018). Defendant received a sentence of imprisonment of
40 months as to count three for a grade A violation of his
conditions of supervised release, and this is less than the
60 month statutory maximum authorized under §
3583(e)(3). This sentence is also within the applicable
advisory guideline range under the sentencing guidelines.
Defendant would have a legitimate argument if the Court had
re-imposed a term of supervised release following
his 40 month revocation sentence of imprisonment, but no term
of supervised release was re-imposed in this case. The Court
finds no error with the sentence imposed upon revocation of
defendant's supervised release for a second time, and his
§ 2255 motion is denied.
of the Rules Governing Section 2255 Proceedings instructs
that “[t]he district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. §
2253, the court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right, ” and the
court “indicates which specific issue or issues satisfy
[that] showing.” A petitioner can satisfy that standard
by demonstrating that the issues raised are debatable among
jurists, that a court could resolve the issues differently,
or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
After considering the record in this case, the Court
concludes that a certificate of appealability should not
issue as defendant has not made a substantial showing of the
denial of a constitutional right. The record is devoid of any
authority suggesting that the Tenth Circuit Court of Appeals
would resolve the issues in this case differently.
IS THEREFORE ORDERED that defendant's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 (Dkt. # 200) is denie ...