United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. SKAVDAHL UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's Motion To
Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. §
2255 (ECF No. 1071). For reasons stated below, the Court
overrules defendant's motion.
November 20, 2013, a grand jury charged Verdell Mays with
conspiracy to manufacture, to possess with intent to
distribute, and to distribute cocaine, cocaine base and
marijuana, and to maintain a drug-involved premises in
violation of 21 U.S.C. §§ 841(a)(1), 846, and 856
(Count 1) and using a communication facility to facilitate a
drug trafficking crime in violation of 21 U.S.C. §
843(d) (Count 3). See Second Superseding Indictment
(ECF No. 439) at 1-5. On February 3, 2014, the day trial was
scheduled to begin, Mr. Mays pled guilty to both counts
without a plea agreement. See Petition To Enter Plea Of
Guilty And Order Entering Plea (ECF No. 561).
15, 2014, the undersigned judge, sitting by designation,
sentenced Mr. Mays to 225 months in prison and eight years of
supervised release. See Judgment In A Criminal Case
(ECF No. 719) at 2-3. On April 8, 2015, the Tenth Circuit
affirmed defendant's sentence. See Order And
Judgment (ECF No. 927). On August 24, 2015, under
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 180
months. See Order Regarding Motion For Sentence Reduction
Pursuant To 18 U.S.C. § 3582(c)(2) (ECF No. 943).
Defendant's term of supervised release was unchanged.
23, 2018, Mr. Mays filed a motion to vacate his sentence
under 28 U.S.C. § 2255. Defendant asserts that his
sentence violates his Fifth Amendment right to protection
against double jeopardy because it includes both a term of
imprisonment and a term of supervised release. See Motion
To Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C.
§ 2255 (ECF No. 1071) at 4, 12-13; Memorandum
In Support Of Application For Habeas Corpus (ECF No.
1071-2) at 3-12. Mr. Mays asks the Court to vacate his term
of supervised release and “place it as Congress
intended it, inside the sentence” of imprisonment.
Motion To Vacate, Set Aside, Or Correct Sentence Under 28
U.S.C. § 2255 (ECF No. 1071) at 13.
Mays argues that his sentence of imprisonment and supervised
release violates his right to protection against double
jeopardy. Memorandum In Support Of Application
For Habeas Corpus (ECF No. 1071-2) at 3-12. The
Double Jeopardy Clause of the Fifth Amendment provides that
“[n]o person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.”
The Double Jeopardy Clause prohibits multiple punishments and
multiple prosecutions for the same criminal conduct.
United States v. Dixon, 509 U.S. 688, 696 (1993);
Blockburger v. United States, 284 U.S. 299, 304
(1932). The protection against multiple punishments is
“designed to ensure that the sentencing discretion of
courts is confined to the limits established by the
legislature.” Ohio v. Johnson, 467 U.S. 493,
499 (1984). “Because the substantive power to prescribe
crimes and determine punishments is vested with the
legislature, the question under the Double Jeopardy Clause
whether punishments are ‘multiple' is essentially
one of legislative intent.” Id. (quoting
Missouri v. Hunter, 459 U.S. 359, 366-68 (1983)).
Congress clearly intended that a sentence include both a term
of imprisonment and a term of supervised release. The statute
of conviction on Count 1, 21 U.S.C. § 841(b)(1)(B), as
applied to Mr. Mays, requires that any sentence imposed shall
“include a term of supervised release of at least 8
years in addition to [the] term of imprisonment.” 21
U.S.C. § 841(b)(1)(B); see Presentence Investigation
Report (ECF No. 679), ¶ 132 (because information
filed establishing prior felony drug offense conviction,
defendant subject to term of supervised release of at least 8
years). In the general statute authorizing courts to impose
supervised release, Congress has expressed its intent that
where the statute of conviction requires a term of supervised
release, a court must include such a term as part of the
sentence. 18 U.S.C. § 3583(a). Because Congress has
specifically authorized, and in this case required, a
sentence which includes both a term of imprisonment and a
term of supervised release, defendant's sentence does not
violate his Fifth Amendment right to protection against
double jeopardy. See Doddard v. United States, No.
17-7982(SDW), 2018 WL 2684115, at *7 (D.N.J. June 4, 2018)
(sentence of imprisonment and supervised release does not
violate Double Jeopardy Clause); Knope v. United
States, No. 13-C-0043, 2017 WL 1052588, at *9 (E.D. Wis.
Mar. 20, 2017) (same); United States v. Lee, 84
F.Supp.3d 7, 10 (D.D.C. 2015) (same); Pryer v. United
States, 679 F.Supp.2d 529, 538 (D. Del. 2010) (same).
Accordingly, the Court overrules defendant's motion.
above reasons, the Court finds that the files and records in
this case conclusively show that Mr. Mays is not entitled to
relief. No. evidentiary hearing or response by the government
is required to resolve defendant's motion. 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 allegations, if proved, would entitle petitioner to
relief and allegations not contravened by record).
appeal from a final order in a Section 2255 proceeding may
not be taken unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B).
A certificate of appealability may issue only if petitioner
has made a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
This standard requires that petitioner demonstrate that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
United States v. Keyes, 280 Fed.Appx. 700, 701 (10th
Cir. 2008) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). For the reasons detailed in this Memorandum
And Order, Mr. Mays has not made a substantial showing
of the denial of a constitutional right, and the Court
therefore denies a certificate of appealability.