Appellate Defense
The Fourth Circuit Court of Appeals released its decision today on U.S. v. Nicholas Omar Tucker. Tucker filed a § 2255 motion alleging an ineffective assistance of counsel. Tucker chose to plead guilty to felon in possession of a firearm and under the Armed Career Criminal Act, a mandatory minimum of fifteen years is imposed if it is found that an individual had three prior violent felony convictions. To meet the standards for a violent felony, the term of imprisonment must exceed one year. Also each conviction must be a separate criminal charge to verify that the occasions were in fact different. Tucker's presentence investigation report indicated that he had a conviction for assault and battery of a high and aggravated nature; however, he was sentenced in Magistrate's Court to only thirty days. As such, this charge does not constitute a valid predicate offense under § 924(e). Further, the two burglary convictions that Tucker was charged with were not proven as distinct within the PSR, which relied solely on the police officer's investigative reports. Since Tucker was with an accomplice, the government could not prove that the two offenses were distinct and that Tucker entered each location himself.
Since Tucker's attorney did not object to any of the above findings, the Court concluded that this demonstrated an accurate reasoning for an ineffective assistance of counsel allegation. The Court determined that Tucker's sentence was effected by his attorney's actions, which is one of the key aspects it must review when considering these types of motions. Further, in removing two of Tucker's previous violent offenses, the three offense requirement was no longer met under the Armed Career Criminal Act. This means that he did not qualify as a armed career criminal under the statute and that the mandatory minimum did not apply. In light of these facts, the district court's order was vacated and they have been notified to resentence Tucker pursuant to the relief he requested in the § 2255 motion.
In cases such as this, it is important to make sure that you hire an attorney that is knowledgeable of the federal statutes in order to ensure that the court is aware of any issues or inconsistencies. Choosing the right criminal defense attorney is vital in establishing a proper defense and receiving a fair judgment and/or sentence. Our South Carolina attorneys have a vast amount of experience in both state and federal courts and handle criminal cases all over the United States. If you have been charged with a crime, our attorneys can assist you in the appellate process and provide you with your available options. Remember, once you are sentenced, you only have ten days to appeal the judgment. You must hire an appellate attorney that can file the necessary documents in order to acquire the records that will need to be included in your initial brief. Please contact our office today if you are seeking to appeal your sentence at 1-800-94-TRIAL.
Our South Carolina appellate attorneys are highly experienced in federal and state appeals and are willing to assist you in your case. Please contact our office today to schedule a free consultation.
