Wednesday, September 12, 2012

Relief Granted; 2255 Petitioner Gets Hearing on Criminal History Calculation Error


US v. Rayford, No. 12-3006 (Kan), 9/6/12 - possible error in calculating defendant’s criminal history in this attempted bank robbery case, based on evidence that he got sentenced on the same day in two different prior drug trafficking cases, FINALLY gets addressed via 2255, resulting in remand to establish whether he really was sentenced on same day in both cases, and, if so, whether there had been an intervening arrest after first incident and before the second. This started with what was apparently a typo in the presentence report that indicated that the sentencings had taken place two days apart. Nobody caught this at the time, including defense counsel. This error, if such it was, placed defendant in criminal history category V instead of IV. He was sentenced to the bottom of the guideline imprisonment range. On direct appeal, counsel filed an Anders brief and the Tenth affirmed. Defendant then obtained what he represents to be a transcript of the drug cases sentencings, showing that both were sentenced on the same day, and filed a 2255 petition. The district court denied relief because it found that the issue had already been rejected on direct appeal. Rejecting the government's various procedural arguments, the Tenth decided to exercise discretion and cut to the chase, granted relief based on apparent ineffective assistance of counsel, and remanded for the district court to sort the whole thing out. Good for them (McKay, with Briscoe and Holmes).