United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. SKAVDAHL United States District Judge.
matter is before the Court on defendant's Motion
Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or
Correct Sentence By A Person In Federal Custody (ECF No.
985). For reasons stated below, the Court overrules
November 20, 2013, a grand jury charged Damian Mays with
conspiracy to manufacture to possess with intent to
distribute and to distribute 500 grams or more of a mixture
or substance containing cocaine and two counts of using a
communication facility in committing, causing and
facilitating the conspiracy. See Second Superseding
Indictment (ECF No. 439), Counts 1, 11 and 12. On
February 3, 2014, without a plea agreement, Mr. Mays pled
guilty to all three counts. See Petition To Enter Plea Of
Guilty And Order Entering Plea (ECF No. 559).
sentencing, the Court calculated a base offense level of 32
under U.S.S.G. § 2D1.1 based on a drug quantity of 1.69
kilograms of cocaine and 220 grams of cocaine base, or a
total marijuana equivalent of 1, 123.62 kilograms. See
Presentence Investigation Report (ECF No. 1131),
¶¶ 96, 100-01 (base offense level 32 for offense
involving at least 1, 000 kilograms but less than 3, 000
kilograms of marijuana under 2013 version of Guidelines). The
Court added two levels under U.S.S.G. § 2D1.1(b)(1)
because defendant possessed a dangerous weapon during the
offense, another two levels under U.S.S.G. § 3C1.1
because defendant obstructed justice and two more levels
under U.S.S.G. § 3C1.2 because defendant recklessly
created a substantial risk of death or bodily injury to
another in the course of fleeing from a law enforcement
officer. See id., ¶¶ 87, 90-91. The Court
then subtracted two levels for defendant's acceptance of
responsibility. See id., ¶ 94. Based on a
criminal history category II and a total offense level of 36,
defendant's advisory guideline range was 210 to 262
months. See id., ¶ 124.
12, 2014, the undersigned judge, sitting by designation,
sentenced Mr. Mays to 220 months in prison. See Judgment
In A Criminal Case (ECF No. 721) at 2. Defendant
appealed. On April 8, 2015, the Tenth Circuit Court of
Appeals affirmed defendant's conviction and sentence.
See Order And Judgment (ECF No. 928). On August 24,
2015, in light of Amendment 782 to the Sentencing Guidelines,
which reduced by two levels defendant's base offense
level, the Honorable Kathryn H. Vratil reduced
defendant's sentence to 176 months. See Order
Regarding Motion For Sentence Reduction Pursuant To 18
U.S.C. § 3582(c)(2) (ECF No. 942).
28, 2016, defendant filed a motion to vacate his sentence
under 28 U.S.C. § 2255. Defendant asserts that the Court
erred in calculating his guideline range under the United
States Sentencing Guidelines. In particular, defendant argues
that the Court erroneously enhanced his sentence for
possession of a firearm, reckless endangerment and
obstruction of justice.
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989).
challenges sentencing enhancements for possession of a
firearm, reckless endangerment and obstruction of justice. On
direct appeal, defendant raised the same three issues. The
Tenth Circuit addressed each issue and affirmed this
Court's sentencing findings. See Order And
Judgment (ECF No. 928) at 10-15. Under the law of the
case doctrine, once a court decides a rule of law, that
decision continues to govern the same issues in subsequent
stages in the same case. Arizona v. California, 460
U.S. 605, 618 (1983); see United States v. West, 646
F.3d 745, 748 (10th Cir. 2011). The doctrine seeks to
preserve the finality of judgments, to prevent continued
re-argument of issues already decided, and to preserve scarce
judicial resources. Procter & Gamble Co. v.
Haugen, 317 F.3d 1121, 1132-33 (10th Cir. 2003). An
important corollary to the law of the case doctrine, known as
the “mandate rule, ” requires a district court to
comply strictly with the mandate rendered by the reviewing
court. See Ute Indian Tribe of the Uintah & Ouray
Reservation v. Utah, 114 F.3d 1513, 1520-21 (10th Cir.
Tenth Circuit recognizes only three “exceptionally
narrow” grounds for departure from the law of the case
doctrine: (1) when the evidence in a subsequent trial is
substantially different; (2) when controlling authority has
subsequently made a contrary decision of the law applicable
to such issues; or (3) when the decision was clearly
erroneous and would work a manifest injustice. United
States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998).
Defendant has not cited any potential exception to the law of
the case doctrine or mandate rule, or otherwise explained why
this Court should rule in his favor on issues which the Tenth
Circuit specifically rejected on direct appeal. Accordingly,
the Court overrules defendant's motion to vacate his
above reasons, the Court finds that the files and records in
this case conclusively show that defendant is not entitled to
relief. No evidentiary hearing or response by the government
is required to resolve defendant's claim. See 28
U.S.C. § 2255; United States v. Marr, 856 F.2d
1471, 1472 (10th Cir. 1988) (no hearing required where court
may resolve factual matters raised by Section 2255 petition
on record); United States v. Barboa, 777 F.2d 1420,
1422-23 (10th Cir. 1985) (hearing not required unless
petitioner's allegations, if proved, would entitle her to
relief and allegations not contravened by record).