The opinion of the court was delivered by: Judge Muir
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The background of this case is set forth in prior orders of court and we will not repeat that background other than as needed to address Jame Mabry's motion to vacate, set aside, or correct sentence filed on May 11, 2006, prusuant to 28 U.S.C. § 2255.
On March 25, 2004, a four count indictment was returned by a federal grand jury charging Mabry with possessing with intent to distribute and distributing controlled substances (Counts 1, 2 and 3) and possessing a firearm in furtherance of a drug trafficking crime (Count 4). On November 18, 2004, a superseding indictment consisting of six counts was filed charging Mabry with possessing with intent to distribute and distributing controlled substances (Counts 1, 2, 3, and 4), possessing a firearm in furtherance of a drug trafficking crime (Count 5) and possessing a firearm after having been convicted of at least three crimes punishable by imprisonment for a term exceeding one year and constituting violent felonies or serious drug offenses (Count 6).
The case was on the May, 2005, trial list and a jury was selected on May 3, 2005, However, after jury selection Mabry entered a plea of guilty to Count 3 of the superseding indictment and the Probation Office was directed to prepare a presentence report. The maximum penalty for that offense was 40 years imprisonment and a $2,000,000.00 fine. In committing the offense, Mr. Mabry supplied quantities of crack cocaine to a confidential informant. In pleading guilty Mr. Mabry accepted responsibility for the distribution of at least 5 grams of crack cocaine but less than 20 grams of crack cocaine.
Also, as part of the plea agreement Mabry waived his right "to appeal any conviction and sentence, including a sentence imposed within the statutory maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742 or any other ground, constitutional or non-constitutional, including the manner in which the sentence was determined[.]" Mabry further waived his "right to challenge any conviction or sentence or the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255."
A presentence report and addendum thereto were prepared and submitted to the court on September 21, 2005. Probation Officer Drew Thompson determined that the total offense level is 32, the criminal history category is VI and the guideline imprisonment range is 210 to 262 months.
A presentence conference was held on September 27, 2005, attended by assistant United States attorney McCann and defense counsel Farrell at which time it was agreed that counsel would file briefs addressing (1) the objections asserted by Mabry to the presentence report and (2) the 18 U.S.C. §3553 factors and the court so ordered. Mabry filed a brief on October 28, 2005. After being granted an extension of time, the Government filed a brief on December 14, 2005. A reply brief was due on January 3, 2006, but Mabry elected not to file one.
The brief submitted by Mabry addressed his objections to the presentence report and the section 3553 factors. By order of January 17, 2006, we overruled Mabry's objections to the presentence report and noted that we would consider all of the section 3553 factors at the time of sentencing.
The first objection to the presentence report was Mabry's claim that he should not be designated a career offender. Mabry was placed in criminal history category VI because he was found by the probation officer to be a career offender. Section 4B1.1 of the Sentencing Guidelines states in pertinent part as follows:
A defendant is a career offender if (1) the defendant was at least 18 years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Mabry asserted that the simple assault convictions set forth in paragraphs 23 and 28 of the presentence report which triggered the application of the Career Offender provision should not have done so because while they were crimes of violence they were misdemeanors and not felonies. This objection was meritless because U.S.S.G. § 4B1.2, Application Note 1, defines a prior felony conviction as "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated a felony and regardless of the actual sentence imposed." The simple assault convictions each caried a maximum penalty of 2 years. Consequently, those convictions were felony convictions as defined by the Guidelines and required application of the Career Offender provision.
Mabry next contended that the six convictions set forth in paragraphs 22 through 27 should have been considered related for purposes of calculating his criminal history category. He contended that those six related cases were consolidated by the state court for disposition purposes and that he received a combined sentence of 1 1/2 to 3 years' imprisonment on all six.
Section 4A1.2(a)(2) of the Guidelines provides that "[p]rior sentences imposed in unrelated cases are to be counted separately." The commentary to that section states that "[p]rior sentences are not considered related if they were for offenses that were separated by an intervening arrest . . . ." Paragraph 22 of the presentence report revealed that Mabry was arrested on January 22, 1990, for criminal conspiracy and attempted theft by unlawful taking. Paragraph 23 revealed that Mabry was arrested for simple assault on February 25, 1990. Paragraph 24 revealed that Mabry was arrested on March 20, 1990, for attempted theft by unlawful taking. Paragraph 25 revealed that Mabry was arrested on April 16, 1990, for burglary and attempted theft. Paragraph 26 revealed that Mabry was arrested on April 29, 1990, for criminal conspiracy, burglary and theft related offenses. ...