United States v. Lemmon

1

UNITED STATES OF AMERICA, PLAINTIFF v. DAVID HURL LEMMON, DEFENDANT

No. 2:16-cr-20008-PKH-MEF-1

United States District Court, W.D. Arkansas, Fort Smith Division

May 11, 2022

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE

Before the Court is the Defendant's Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 208) filed on September 24, 2019. The Government filed its response (ECF No. 212) on October 25, 2019, together with affidavits of trial counsel (ECF No. 212-1), sentencing counsel (ECF No. 212-2), and appellate counsel (ECF No. 212-3). Defendant filed a reply (ECF No. 217) on December 12, 2019, along with a supporting affidavit (ECF No. 217-1). After several continuances, some Covid-19 related, an evidentiary hearing was held on December 8, 2021. (ECF No. 259). The matter is ready for report and recommendation.

I. BACKGROUND

On March 16, 2016, an Indictment was filed against Defendant David Hurl Lemmon (“Lemmon”), alleging that from at least January 15, 2016, through January 23, 2016, Lemmon engaged in a conspiracy to distribute a mixture or substance that contained a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. (ECF No. 1). Lemmon was arrested on March 29, 2016 (ECF No. 24), and he appeared for arraignment on March 30, 2016, at which time J. Marvin Honeycutt (“Honeycutt”), a Criminal Justice Act (“CJA”) Panel attorney, was appointed and Lemmon entered a not guilty plea to the Indictment. (ECF Nos. 12, 14). Lemmon waived the issue of detention and was remanded to the custody of the U.S. Marshal Service. (ECF Nos. 12, 15). Honeycutt requested discovery in open court. (ECF No. 12).

On April 21, 2016, retained counsel, John Wesley Hall, Jr. (“Hall”), entered his appearance on behalf of Lemmon and moved for substitution of counsel. (ECF Nos. 25, 26). Honeycutt moved to withdraw the next day (ECF No. 27), and the Court granted his motion.

On October 5, 2016, Lemmon was named in a Superseding Indictment charging him with: Count One, engaging in a conspiracy to distribute a mixture or substance that contained a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, involving a quantity of 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(b)(1)(A)(viii); and, Count Two, being a felon in possession of one or more firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF No. 77). Lemmon appeared with his retained counsel for arraignment on October 12, 2016, at which time he entered a not guilty plea to the Superseding Indictment. (ECF No. 88).

On November 3, 2016, Hall filed a motion to suppress evidence seized in a search of Lemmon's home. (ECF No. 98). An Opinion and Order denying the motion to suppress was entered on November 17, 2016. (ECF No. 104).

A jury trial was held on December 13-15, 2016. (ECF Nos. 124-126). After the Government rested its case-in-chief, Hall made a Rule 29 motion for acquittal, which was denied by the Court. (ECF No. 126, p. 1). Lemmon advised the Court of his decision not to testify and the defense rested without calling any witnesses. (Id.). Hall renewed his Rule 29 motion for acquittal, and it was again denied by the Court. (Id.). After deliberating approximately one hour 48 minutes on December 15, 2016, the jury returned verdicts finding Lemmon guilty of both counts charged in the Superseding Indictment. (ECF No. 126, p. 2; ECF No. 127).

On January 10, 2017, the Court received a letter from Lemmon, which he characterized as a “Motion for judgement of Acquittal or Re-trial,” alleging in part “misrepresentation” by Hall. (ECF No. 134). A motion to withdraw was filed by Hall the next day. (ECF No. 135). A hearing was held on January 26, 2017, and Hall's motion to withdraw was granted. (ECF Nos. 138, 140). Lemmon's request for appointment of counsel was granted, and Tyler H. Benson (“Benson”), a CJA Panel attorney, was appointed to represent Lemmon. (ECF No. 138; Text Only Order entered January 26, 2017).

An initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on April 3, 2017. (ECF No. 146).

On April 7, 2017, the Government advised it had four objections to the initial PSR, and it added a point of clarification concerning Lemmon's status as either an armed career criminal or a career offender. (ECF No. 153). The Government's first objection requested that three state court convictions on November 21, 2001, be added to Lemmon's reported criminal history. (Id., ¶ 1). A second objection sought the addition of three criminal history points related to a November 2005 conviction. (Id., ¶ 2). The Government's third objection sought the addition of three criminal history points for the November 21, 2001, state court convictions. (Id., ¶ 3). Based on these additions to Lemmon's reported criminal history, the Government's fourth objection sought to correct Lemmon's criminal history score to 21. (Id., ¶ 4). While agreeing with the finding in Paragraph 122 of the PSR that Lemmon is an armed career criminal, the Government sought to clarify that if the Court were to determine that one of Lemmon's three qualifying convictions does not constitute either a “violent felony” or a “serious drug offense” as defined in 18 U.S.C. § 924(e), it was the Government's position that Lemmon is a career offender pursuant to U.S.S.G. § 4B1.1(a). (Id., ¶ 5).

On April 13, 2017, Benson filed a response to the initial PSR on Lemmon's behalf raising numerous objections. (ECF No. 155). Due to the numerous objections, the Probation Officer organized the objections in relation to the specific sections of the PSR. (ECF No. 156-1, p. 2).

For Lemmon's first category of objections, regarding the Charges and Convictions section of the PSR (Paragraphs 1-7), Lemmon admitted he was named in the charging documents, but he denied the truthfulness of the allegations against him. The Probation Officer believed Paragraphs 1-7 of the PSR were accurate and that no changes were warranted. (Id.).

Lemmon's second objection concerned the Codefendant Cases section of the PSR (Paragraphs 16-20). Stating that he was without sufficient knowledge to form a response, Lemmon objected to Paragraphs 16-20. The Probation Officer believed Paragraphs 16-20 of the PSR were accurate and that no changes were warranted. (Id., pp. 2-3).

For his third category of objections, Lemmon objected to each material allegation set forth in the Offense Conduct section of the PSR (Paragraphs 22-78). (Id., p. 3). Noting that a jury convicted Lemmon based on the information contained in the Offense Conduct section, the Probation Officer reported that no changes were warranted. (Id.).

Lemmon's fourth objection was to the Offense Level Computation section of the PSR (Paragraphs 84-87, 89-92, and 96-100). (Id.). Lemmon objected to all of it. The Probation Officer reported that the offense level had been correctly calculated and that no changes were warranted.

(Id.).

Lemmon's fifth objection concerned the Criminal History Computation section of the PSR (Paragraphs 119-122 of the initial PSR; Paragraphs 122-125 of the final PSR). (Id.). Again, Lemmon objected to every paragraph in this section, and he reiterated his allegation that “he did not commit this offense.” The Probation Officer responded by stating that Lemmon's criminal history score had been correctly calculated, therefore, no changes were warranted. (Id.).

Lemmon's sixth objection stated that he was never legally married to Christy Foerster, and that Foerster was not incarcerated and resided in Fort Smith, Arkansas. The Probation Officer made a revision in the final PSR. (Id.). His seventh objection admitted the accuracy of Paragraph 150 of the PSR, but he wanted it reported that he owes Kubota Tractor Company a total of $19,000. The Probation Officer revised the paragraph to reflect that information. (Id.).

Lemmon next objected to the PSR's report that he was not eligible for probation because his counts of conviction are Class A felonies and statutory limitations exist. The Probation Officer responded that Paragraph 162 is accurate and that no change was warranted. (Id.).

Lemmon's ninth and final objection related to the PSR's report that no factors were identified to warrant either a departure from the applicable guidelines range or a sentence outside of the advisory guideline system (Paragraphs 172-173 of the initial PSR; Paragraphs 175-176 of the final PSR). (Id.). Lemmon offered no specific factors in support of this objection. The Probation Officer noted that Paragraph 175 was accurate and no change warranted; but, Paragraph 176 was modified to reflect that because the meth was tested for purity, Lemmon is accountable under the guidelines for the weight of the actual meth, which resulted in a two-level increase in the total offense level from it would have been if law enforcement had decided not to test the purity of the meth, and the end result would presumably be a guideline imprisonment range of 360 months to life. (Id., p. 4).

On April 18, 2017, a final PSR was submitted to the Court. (ECF No. 156).

For purposes of guideline calculation as to Count One, Lemmon was determined to be accountable for 21.82 kilograms of actual methamphetamine. (ECF No. 156, ¶ 76). Pursuant to U.S.S.G. § 2D1.1(c)(1), this drug quantity called for a base offense level of 38. (Id., ¶ 84). A two-level enhancement was applied under U.S.S.G. § 2D1.1(b)(1) as...