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United States v. Wegman-Conway

United States District Court, D. Colorado

January 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. BRYAN JAMES WEGMAN-CONWAY, Defendant. Civil Action No. 16-cv-1415-WJM

          ORDER DENYING DEFENDANT'S MOTION TO VACATE UNDER 28 U.S.C. § 2255

          William J. Martínez United States District Judge.

         Before the Court is Defendant Bryan James Wegman-Conway's Motion to Vacate Under 28 U.S.C. § 2255. (ECF No. 44.) Because the undersigned finds that he would impose the same sentence even accepting Wegman-Conway's arguments as true, his motion is denied.

         I. BACKGROUND

         A. Wegman-Conway's Sentence

         In July 2012, the Government indicted Wegman-Conway on two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (“felon-in-possession”); and two counts of theft from a licensed firearms dealer, in violation of 18 U.S.C. § 922(u). (ECF No. 1.) In January 2013, and pursuant to a plea agreement, Wegman-Conway pleaded guilty to all four counts. (ECF No. 28.)

         The plea agreement included the parties' “joint recommendation for a period of confinement of 96 months, ” calculated as “a 13% reduction from the advisory guideline calculation reflected [later in the plea agreement].” (Id. at 2 & n.1 (emphasis removed).) That Guidelines calculation was as follows:

• A base offense level of 20, per Guidelines § 2K2.1(a)(4), which applies when “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense, ” as well as when the offense involved various specific types of firearms or other characteristics.[1] The plea agreement did not specify which portion of § 2K2.1(a)(4) applied to Wegman-Conway.
• An increase of 4 levels (to 24) under Guidelines § 2K2.1(b)(1)(B), which applies when the offense involves 8-24 firearms (Wegman-Conway's offense involved 17 firearms).
• An increase of another 4 levels (to 28) under Guidelines § 2K2.1(b)(6)(B), which applies when a firearm is possessed in connection with another felony.
• A decrease of 3 levels (to 25) for acceptance of responsibility, presumably under Guidelines § 3E1.1(b), which permits a 3-level decrease (actually, a decrease of 1 level in addition to the normal 2-level decrease for acceptance of responsibility) when the offense level is 16 or greater and the Government moves for such a decrease.

(Id. at 10.) Thus, the parties calculated Wegman-Conway's offense level at 25. As for his criminal history computation, the parties offered a “tentative” conclusion that Wegman-Conway fell into criminal history category VI. Given an offense level of 25 and a criminal history category of VI, the advisory Guidelines sentencing range was 110-37 months. See United States Sentencing Commission, Guidelines Manual 394 (2012). Subtracting 13% from the low end of that range yields approximately 96 months.

         Following Wegman-Conway's guilty plea, the Probation Office prepared a Presentence Investigation Report (“PSIR”). The PSIR, like the plea agreement, found that Wegman-Conway's base offense level was 20 per Guidelines § 2K2.1(a)(4) (again, without specifying what portion of that Guidelines section applied); that the offense level should be increased by 4 levels (to 24) under Guidelines § 2K2.1(b)(1)(B); and that the offense level should be increased by another 4 levels (to 28) under Guidelines § 2K2.1(b)(6)(B). (ECF No. 33 ¶¶ 17, 18, 21.) However, the PSIR noted two additional enhancements:

• an increase of 2 levels (to 30), per Guidelines § 2K2.1(b)(4)(a), which applies when the firearms involved in the offense were stolen; and
• an increase of 4 levels (to 34), per Guidelines § 2K2.1(b)(5), which applies when the defendant engages in firearms trafficking.

(Id. ¶¶ 19, 20.) The PSIR agreed with the plea agreement, however, that a decrease of 3 levels should apply under Guidelines § 3E1.1(b). (Id. ¶ 26.) Thus, the PSIR came to a total offense level of 31-six ...


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