United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD UNITED STATES DISTRICT JUDGE
Dawn Rushon, a federal inmate proceeding pro se, has
moved to vacate, set aside, or correct her sentence under 28
U.S.C. § 2255. The government has filed a motion to
dismiss, to which Rushon has responded by seeking to amend
her § 2255 motion to include an additional claim. For
the reasons that follow, the government's motion to
dismiss will be granted, Rushon's motion to vacate will
be denied, and her request to amend will be denied as futile.
January 19, 2017, a grand jury in the Western District of
Virginia returned a four-count indictment against Rushon.
Count One of the indictment charged Rushon with conspiracy.
to distribute and possess with intent to distribute 50 grams
or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), and 846. On July 17,
2017, Rushon entered a plea of guilty to the conspiracy
offense charged in Count One, pursuant to a written plea
agreement. In exchange, the government agreed to dismiss the
remaining counts of the indictment.
parties' plea agreement included a section pertaining to
the application of the United States Sentencing Guidelines
("U.S.S.G"). The parties stipulated that Rushon
should be held responsible for between 500 and 1, 500 grams
of methamphetamine, resulting in a base offense level of 30
under U.S.S.G. § 2D1.1. Rushon also acknowledged that
she may receive a two-level enhancement for possession of a
dangerous weapon under U.S.S.G. § 2D1.1(b)(1). However,
Rushon reserved the right to contest the application of the
preparation for sentencing, a probation officer prepared a
presentence investigation report ("PSR") that
summarized the offense conduct. According to the PSR, an
investigation conducted by the Drug Enforcement
Administration, the Virginia State Police, and local law
enforcement agencies revealed that Rushon was involved in the
distribution of a significant quantity of methamphetamine in
Southwest Virginia from 2012 to 2016. On two occasions during
that period, law enforcement officers utilized confidential
informants to make controlled purchases of methamphetamine
April 11, 2016, a confidential informant advised law
enforcement officers that Rushon was staying at a Super 8
hotel in Wytheville, Virginia, and that there were multiple
envelopes in Rushon's room containing what appeared to be
methamphetamine. The confidential informant also reported
that Rushon had been observed walking from her hotel room to
a 2015 Dodge Dart in the parking lot. That same day, law
enforcement officers obtained and executed a search warrant
for Rushon's hotel room and vehicle. During the execution
of the warrant, officers found baggies containing
methamphetamine and oxycodone, a digital scale, and $1, 520
in currency. Law enforcement officers also found additional
currency and a disassembled revolver in Rushon's vehicle.
on the information that Rushon provided following her arrest,
the probation officer determined that Rushon should be held
responsible for over 9 kilograms of methamphetamine, which
resulted in a base offense level of 34 under U.S.S.G. §
2D1.1. The probation officer also applied a two-level firearm
enhancement under § 2D 1.1 (b)(1) and a three-level
reduction for acceptance of responsibility under §
3E1.1, resulting in a total offense level of 33.
attorney submitted objections to the PSR. In particular,
counsel objected to the quantity of methamphetamine
attributed to Rushon by the probation officer. Counsel also
objected to the application of the firearm enhancement,
emphasizing that the revolver found in Rushon's vehicle
was disassembled and that it was located in the locked trunk.
appeared for sentencing on November 14, 2017. During the
hearing, the court heard argument from counsel regarding the
objections to the presentence report. The court sustained
Rushon's objection to the quantity of methamphetamine
attributed to her in the PSR, and instead adopted the
quantity agreed to by the parties in the plea agreement.
However, the court overruled Rushon's objection to the
firearm enhancement. Although defense counsel continued to
maintain that the presence of the disassembled revolver in
the trunk of Rushon's vehicle did not support the
application of the enhancement, counsel acknowledged that
agents had been able to fully operate the revolver after
assembling it. The court determined that "the presence
of a firearm that could easily be made operational [was]
sufficient to support [the] application" of the
two-level enhancement. Sentencing H'rg Tr. 18, Dkt. No.
ruling on the objections to the presentence report, the court
calculated a total offense level of 29. With a criminal
history category of II, the defendant's advisory
Guidelines range was 97 to 121 months in prison. The court
granted a substantial assistance motion made by the
government and imposed a term of imprisonment of 66 months.
Rushon did not appeal her conviction or sentence.
has since moved to vacate her sentence by filing a form
motion under 28 U.S.C § 2255.[*] In her motion, Rushon argues that
the court erred at sentencing by applying the two-level
enhancement for possession of a firearm under U.S.S.G. §
recently submitted a letter indicating that she wishes to
assert an additional claim based on the Supreme Court's
decision in Sessions v. Dimaya, 138 S.Ct. 1204
(2018), since "[her] gun wasn't used or brandished
in any way." Dkt. No. 61. The court ...