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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES

v.

SAMOL MOM



CR. No. 11-019-01-ML

MEMORANDUM AND ORDER

Petitioner Samol Mom (“Mom”), proceeding pro se, has filed a
timely motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. For the reasons stated below, the
motion is denied.

I. Background and Travel
On March 30, 2011, Mom pleaded guilty to possessing a firearm
after having been convicted of a felony, in violation of 18 U.S.C.
§922(g)(1). According to the prosecution’s version of events, Mom
was arrested in September 2010 by police officers responding to a
report of shots fired in a Providence neighborhood. Upon arriving
at the scene, the officers received witness information regarding
a gray Lexis automobile leaving the area. The witness also
described the driver of the Lexis and his passenger and was able to
provide the Rhode Island registration of the car.

The officers proceeded to the address at which the car was
registered and observed the Lexis parked behind the house located

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at that address. The officers observed two individuals hunched
forward inside the car and it appeared that the men were retrieving
or placing something beneath the seats. As one of the officers
removed the driver from the Lexis, he noticed the handle of a
handgun protruding from beneath the driver’s seat. The driver was
identified as Mom. A search of the Lexis revealed a loaded semi-
automatic handgun under the driver’s seat. The firearm was test
fired and was found to be operable; it was also identified as a
stolen weapon. Mom was determined to have been previously
convicted of several felony offenses.

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In March 2011, Mom - who was represented throughout the
subsequent criminal proceedings by counsel appointed for him -
entered into a plea agreement with the government, pursuant to
which he agreed to plead guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. §922(g)(1). During the course
of a change of plea hearing on March 30, 2011, Mom pleaded guilty
to the charged offense and agreed to the factual presentation of
the evidence by the government. On June 16, 2011, Mom was sentenced
to 63 months of incarceration and a term of 36 months of supervised
release. Mom’s sentence was based on a criminal history category VI

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The passenger was identified as Elliott Marzette; a loaded

semi-automatic pistol was found under the passenger seat.

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Mom disputed that the firearm was stolen and did not admit to

this allegation in his plea colloquy.

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and a total offense level of 19 (a base offense level 20, increased
by 2 levels because the firearm was stolen, decreased by a 3 level
adjustment for acceptance of responsibility), resulting in a
sentencing guideline range of 63 to 78 months.

In accordance with his plea agreement, because the sentence
imposed by the Court was within the guideline range determined by
the Court, Mom did not file a direct appeal of his conviction and
sentence. Instead, Mom filed a collateral appeal pursuant to 28
U.S.C. §2255, in which he asserts that his three prior felony drug
convictions - which qualified him as a felon, and on which his
criminal history category was calculated - had been amended to
misdemeanors. (Docket # 25). In addition, Mom filed a motion
requesting a Rule 11 hearing and for the sentencing transcripts
(Docket # 26). Mom opposed the government’s request (Docket # 29)
for additional time to respond to Mom’s §2255 motion and to obtain
certified copies of the judgments of conviction at issue. (Docket
# 30). After the government filed a response in opposition to Mom’s
§2255 motion (Docket # 31), Mom filed a motion to amend his §2255

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No hearing is required in this matter because the files of
this case conclusively establish that the claims in Mom’s §2255
motion are without merit. David v. United States, 134 F.3d 470,
477-478 (1st Cir.1998)(“Even if a hearing is requested, a district
court properly may forgo it when (1) the motion is inadequate on
its face, or (2) the movant's allegations, even if true, do not
entitle him to relief, or (3) the movant's allegations ‘need not be
accepted as true because they state conclusions instead of facts,
contradict the record, or are ‘inherently incredible.’”)(quoting
United States v. McGill, 11 F.3d 223, 225-226 (1st Cir.1993)).

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motion by adding a memorandum thereto. (Docket # 32). In this
additional filing, Mom suggested, inter alia, that he received
ineffective assistance of counsel because his counsel failed to
assert that (1) this Court had no jurisdiction over the case
because charges for the same criminal conduct were pending in state
court; (2) the “government did not have ... legislative
jurisdiction over the location where the alleged events giving rise
to the offense transpired”; (3) a defendant who serves less than
one year on a conviction is not considered a felon; (4) the search
and seizure of Mom occurred in violation of the Fourth Amendment of
the Constitution; and (5) Mom’s counsel failed to conduct any pre-
trial investigation and/or discovery. Thereafter, Mom filed a
motion requesting the “right to reply at a later date in lieu of
his recently filed amendment.” (Docket # 33). Finally, Mom filed a
motion requesting that the Court take judicial notice of that fact
that Mom has taken steps to vacate his prior state court
convictions. (Docket # 34).
II. Standard of Review
Pursuant to Section 2255, a prisoner may move to vacate, set
aside or correct his sentence “upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack .

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. .” 28 U.S.C. § 2255(a). Relief under Section 2255 is available
to the petitioner only if the Court finds a lack of jurisdiction,
constitutional error, or a fundamental error of law. See United
States v. Addonizio, 442 U.S. 178, 184-84, 99 S.Ct. 2253, 60
L.Ed.2d 805 (1979) (holding that “an error of law does not provide
a basis for a collateral attack unless the claimed error
constituted a ‘fundamental defect which inherently results in a
complete miscarriage of justice.’”)(quoting Hill v. United States,
368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)).

A fundamental error of law is a defect “‘which inherently
results in a complete miscarriage of justice’ or ‘an omission
inconsistent with the rudimentary demands of fair procedure.’”
Knight v. United States, 37 F.3d 769, 772 (1st Cir.1994) (quoting
Hill v. United States, 368 U.S. at 428, 82 S.Ct. at 471).
Sentencing error claims are generally not cognizable in a §2255
proceeding, absent “exceptional circumstances.” Knight, 37 F.3d at
773–74.

III. Mom’s §2255 Motion
In his §2255 motion, Mom asserts four grounds for his request
to vacate, set aside, or correct his sentence. Mom’s Mot. Page 4 of
6 (Docket # 25). First, Mom states that his guilty plea was not
made knowingly, willingly or intelligently. Id. Second, Mom
contends that he was provided with ineffective assistance of
counsel who, Mom alleges, provided him with misadvice. Id. Third,

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Mom states that his waiver of the right to pursue a direct appeal
was not knowingly, willingly and intelligently made, because he was
given incorrect and inaccurate information by his counsel and the
prosecution. Id. Finally, Mom suggests that his sentence was
illegally imposed on him and that this Court was without
jurisdiction to impose a sentence of 63 months on him. Id. at Page
5 of 6.

Although Mom challenges his conviction and sentence on four
different grounds, the gravamen of his arguments with respect to
each of those grounds is directed at Mom’s disagreement with the
calculation of his criminal history. Specifically, Mom maintains
that his three prior drug convictions in Rhode Island state court
were for misdemeanor possession to which he pleaded nolo
contendere. Id. at Pages 4-5 of 6. Thus, Mom argues that (1) he did
not have the qualifying offenses to be adjudged a felon, precluding
his conviction of being a felon in possession of a firearm, and (2)
the state convictions could not be used to compute his significant
criminal history category.

In response, the government submitted documentation - which
have not been challenged by Mom - related to the three convictions4
that served to qualify Mom as a felon and that weighed

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The Court notes that Mom had an extensive criminal history
which included numerous convictions for a variety of offenses in
addition to the three felonies at issue.

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significantly in calculating Mom’s criminal history category:

(1) In 2004, Mom pleaded nolo contendere in Rhode Island
state court to manufacture, delivery and possession of a Schedule
I/II controlled substance, and to possession of marijuana. Mom was
sentenced to six years’ imprisonment, with three months to serve
and 69 months suspended with 69 months’ probation for the former,
and one year suspended with one year probation for the latter.
Judgment of Conviction and Commitment (Docket # 31-1 at Pages 1-2
of 4) and Request to enter plea of nolo contendere or guilty. Id.
at Page 4 of 4. In 2008, Mom admitted to having violated the terms
of his probation, for which the suspension was removed and Mom was
sentenced to 69 months’ imprisonment, six months to serve, 63
months suspended with 63 months’ probation. Judgment of Conviction
and Commitment. Id. at Page 3 of 4.

(2) In 2008, Mom pleaded nolo contendere in Rhode Island state
court to possession of a Schedule I-V controlled substance, for
which he was sentenced to 36 months’ imprisonment, six months to
serve, 30 months suspended with 36 months’ probation. Judgment of
Conviction and Commitment (Docket # 31-2, Pages 1-2 of 3), request
to enter plea of nolo contendere or guilty. Id. at Page 3 of 3.

(3) In 2009, Mom pleaded nolo contendere in Rhode Island state
court to possession of a Schedule I-V controlled substance, for
which he was sentenced to six years’ imprisonment, nine months to
serve, 63 months suspended with 63 months’ probation. Judgment of

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Conviction and Commitment (Docket # 31-2, Pages 1,2 of 3), Request
to enter plea of nolo contendere or guilty. Id. at Page 3 of 3.

In his §2255 motion, Mom appears to challenge his status as a
felon because (1) he pleaded nolo contendere to the three
convictions at issue, and (2) he served less than one year on each
of those convictions. Neither of those arguments carry any weight.
First, pursuant to the United States Sentencing Guidelines, a
prior sentence constitutes a predicate conviction for purposes of
computing a defendants’ criminal history if the sentence was
previously imposed upon adjudication of guilt “whether by guilty
plea, trial, or plea of nolo contendere, for conduct not part of
the instant offense.” 2011 U.S.S.G. §4A1.2(a)(1) (emphasis in
original); United States v. Cadavid, 192 F.3d 230, 238-239 (1st
Cir. 1999). This determination is consistent with § 12-18-3 of the
Rhode Island General Laws, which provides that a plea of nolo
contendere of “any person who is sentenced to serve a term in the
adult correctional institutions or who is given a suspended or
deferred sentence in addition to probation,” is considered a
conviction. R.I. Gen. Laws § 12-18-3(b)(1982); United States v.
Patrone, 948 F.2d 813, 817 (1st Cir. 1991)(concluding that “a nolo
contendere plea followed by a sentence of imprisonment or a
suspended sentence constitutes a conviction.”).

Second, for the purpose of computing a defendant’s criminal
history, a “felony” is defined as “any federal, state, or local

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offense punishable by death or a term of imprisonment exceeding one
year, regardless of the actual sentence imposed.” 2011 U.S.S.G.
§4A1.2(o)(emphasis added); United States v. Almenas, 553 F.3d 27
(1st Cir. 2009)(rejecting defendant’s argument that offense - which
carried a punishment of up to two and one-half years’ incarceration
- did not qualify as a felony because it was categorized as a
misdemeanor under state law and where the defendant was only
required to pay a fine).

Under Rhode Island law, “any criminal offense which at any
given time may be punished by imprisonment for a term of more than
one year, or by a fine of more than one thousand dollars ($1,000),
is declared to be a felony;...” R.I. Gen. Laws § 11-1-2
(1985)(emphasis added). Accordingly, an offense which is punishable
by more than one year of imprisonment constitutes a predicate
felony offense for the purpose of calculating a defendant’s
sentence, regardless whether a part or all of the sentence has been
suspended. State v. Burke, 811 A.2d 1158, 1168-1169 (R.I.
2002)(noting the United States Supreme Court’s conclusion that
“‘[a] suspended sentence is a prison term imposed for the offense
of conviction. Once the prison term is triggered [by a probation
violation], the defendant is incarcerated not for the probation
violation, but for the underlying offense.’” (quoting Alabama v.
Shelton, 535 U.S. 654, 654, 122 S.Ct. 1764, 1770, 152 L.Ed.2d 888,
898 (2002)).

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In sum, it is undisputable that Mom was previously convicted
in Rhode Island state court for three separate offenses for which
sentences of incarceration of more than one year could be imposed.
Neither the fact that Mom pleaded nolo contendere to those offenses
nor that he was required to serve less than one year on each
offense with the remainders suspended, change the felony
categorization of those offenses. As such, each of those three
convictions could serve to qualify Mom as a felon who was
prohibited from possessing firearms and all three convictions were
appropriately included in the computation of Mom’s criminal history
category.

With respect to the additional arguments that Mom has raised
in his amended §2255 petition (Docket # 32), the Court has
considered those arguments and finds them to be without merit.

Conclusion

V.
For all of the foregoing reasons, Mom’s motion to vacate, set

aside, or correct his sentence is DENIED and DISMISSED.

Ruling on Certificate of Appealability

Pursuant to Rule 11(a) of the Rules Governing §2255
Proceedings for the United States District Courts, this Court
hereby finds that this case is not appropriate for the issuance of
a certificate of appealability because Mom has failed to make “a
substantial showing of the denial of a constitutional right” as to
any claim, as required by 28 U.S.C. § 2253(c)(2).

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Mom is advised that any motion to reconsider this ruling will
not extend the time to file a notice of appeal in this matter. See
Rules Governing § 2255 Cases, Rule 11(a).

SO ORDERED.

/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge

June 4, 2013

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