United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH ERNY FOOTE JUDGE
the Court is a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.SG. § 2255 filed byjerry Kenneth
Thompson ("Thompson"). [Record Document 39].
Because this Court's upward departure to the statutory
maximum comported with Rule 32(h) of the Federal Rules of
Criminal Procedure and the sentence did not violate
Thompson's due process rights, the motion is
a convicted felon, was caught in possession of a shotgun
while hunting; he claimed the gun belong to a cousin. [Record
Document 36 at 7, 12]. When the state district attorney
elected not to pursue charges, the state's agents
returned the gun to Thompson on the understanding that he
would relinquish possession to his cousin. [Id. at
7]. After further investigation revealed that he had not done
so, the Government pressed charges. [Id. at 4, 8].
Thompson pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C §
922(g)(1). [Record Document 25]. The presentence report
("PSR") determined that his base offense level was
24, which was then reduced by three points for his acceptance
of responsibility. [Record Document 33 at 5]. The Probation
Office identified 26 prior convictions, which produced a
total of 25 criminal history points and placed Thompson in
Category VI of the Sentencing Table. [Id. at 15].
The resulting Guidelines range was 77 months to 96 months
imprisonment. [Id. at 22].
Probation Office specifically identified U.S.S.G. §
4A1.3 as a basis for an upward departure. [Id. at
23]. Such a departure is allowed when "reliable
information indicates that the defendant's criminal
history category substantially underrepresents the
seriousness of the defendant's criminal history or the
likelihood that the defendant will commit other crimes."
U.S.S.G. § 4A1.3(a)(1). In support of the departure, the
In this case, the defendant has a lengthy criminal history,
with twenty-six prior convictions including violent, theft,
traffic, and drug-related offenses. He also has significant
prior similar conduct, not resulting in convictions. The
defendant's criminal history spans the last twenty-five
years. Thompson's repetitive criminal behavior and
failure to appear to answer charges represents a callous
disregard for the constitutional authority of our justice
system. The revocation record indicates Thompson has not been
successful, even under supervision.
[Record Document 33 at 23].
sentencing hearing, Thompson confirmed that he had reviewed
the PSR with his attorney and stated that he had no
objections. [Record Document 35 at 2-3]. After adopting the
factual findings of the PSR, this Court sentenced Thompson to
the statutory maximum term of 120 months, pointing
specifically to his lengthy and underrepresented criminal
history to justify the upward departure. [Id. at
appealed. [RecordDocument 34]. His attorney filed an
A&rxbrief to which Thompson responded. [Record Documents
47-1 and 47-2]. In his response, he asserted that his is also
unnecessary if the issues were raised on direct appeal or do
not describe constitutional violations. United States v.
McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing
Buckekw v. United States, 575 F.2d 515 (5th Cir.
Court's Alleged Violation of Rule 32(h)
alleges that this Court violated Rule 32(h) of the Federal
Rules of Criminal Procedure. [Record Document 39 at 4-6].
Under that rule:
Before the court may depart from the applicable sentencing
range on a ground not identified for departure either in the
presentence report or in a party's preheating submission,
the court must give the parties reasonable notice that it is
contemplating such a departure. The notice must specify any
ground on which the court is contemplating a departure.
Fed. R. Crim. P. 32(h). Although this Court did not provide
Thompson with advance notice of the upward departure, the PSR
did. [Record Document 33 at 23-24]. Because the PSRidentitied
the grounds on which this Court departed upward (i.e.,
underrepresented criminal history), Rule 32(h) ...