USA v. Day

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:23-cr-00013-MR-WCM-1
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
PAUL GORDON DAY, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant’s pro se Amended
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody [Doc. 171].1
I. BACKGROUND
The Defendant Paul Gordon Day was charged with bank robbery by
force or violence, in violation of 18 U.S.C. § 2113(a), (d) (Count One); and
brandishing a firearm in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (Count Two). [Doc. 1: Indictment].
The Defendant was permitted to represent himself following a hearing
in which a magistrate judge specifically found that no competency hearing
1 The Court will instruct the Clerk to terminate the original Motion to Vacate [Doc. 165],
which has been superseded.
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was required and that the Defendant had been fully advised of the potential
penalties that he faced if convicted. [See Doc. 64]. The federal defender’s
office was directed to appoint standby counsel. [Id.; see Doc. 88 (denying a
request to have standby counsel removed)].
After the Defendant’s Motions to Suppress were denied, the matter
proceeded to a jury trial. [See Doc. 97]. The Defendant was convicted as
charged. [Doc. 106: Verdict].
A Presentence Investigation Report (“PSR”) was prepared in advance
of sentencing. The PSR assigned a base offense level of 20 for Count One.
[Doc. 120: PSR at ¶ 20]. Two levels were added pursuant to U.S.S.G. §
2B3.1(b)(1) because the offense involved taking property from a bank, and
two additional levels were added pursuant to § 2B3.1(b)(2)(B) because a
person was physically restrained to facilitate commission of the offense or
the escape. [Id. at ¶¶ 21, 22]. This resulted in an adjusted offense level amd
total offense level of 24, which when combined with a criminal history
category of III, resulted in an advisory guidelines range of 63 to 78 months
for Count One. [Id. at ¶ 70]. Count Two carried a minimum term of
imprisonment of at least seven years, consecutive to any other counts. [Id.
at ¶¶ 68, 69]. The Defendant did not file any objections to the PSR.
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The Defendant appeared at the sentencing hearing along with standby
counsel. [See Doc. 150: Sentencing Hearing Tr.]. The Defendant indicated
that he understood the sentencing procedure and that he would be able to
abide by each step. [Id. at 3-4]. The Defendant further agreed that he had
seen the PSR and understood its contents; that the guideline calculation was
accurate; and that he had no objections to such calculation. [Id. at 5-7].
Citing the seriousness of the offenses and the impact on victims, the
Government advocated for a sentence of 147 months’ imprisonment,
consisting of a low-end guideline sentence of 63 months on Count One and
the mandatory minimum consecutive sentence of 84 months on Count Two.
[Id. at 11-13]. The Defendant, in turn, argued that certain mitigating factors,
particularly the state of the economy at the time of his offenses, warranted
“a substantial downward departure and even a release of the usual
mandatory seven-year minimum for the firearms conviction….” [Id. at 8].
The Court rejected the Defendant’s mitigation arguments, explaining as
follows:
It is somewhat ironic here that the defendant here is
making the argument about how the state of the economy is a
mitigating factor when the offense that is committed here –
namely, the bank robbery – is something that further erodes the
economy.
…
I’ve taken into account – and I’ve listened to the argument
made by the defendant regarding the mitigation that he argues
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for the state of the economy and sort of interpolating from what
has been expressed by the defendant, I take it that he is talking
about his own personal economic distress as it existed at the
time of the robbery.
But as pointed out by the Assistant United States Attorney,
under 5K2.12, the Sentencing Commission makes clear that the
economic distress of a defendant is, in essence, not a mitigating
factor with regard to a sentence. If it were, it would create the
situation where someone who is of few economic means has a
right to a lesser sentence than someone who has greater
economic means and that would be an unwarranted sentencing
disparity.
So the argument – while I understand why the defendant,
as a layperson – even though apparently he has a law degree
from an accredited law school, but even though he’s making this
argument – and I understand what he may see as the logic
behind it – the logic behind the sentencing statute and the
Sentencing Guidelines runs directly counter to that logic. And
therefore, that argument of necessity has been dismissed
entirely.
[Id. at 19-20].
Accordingly, after considering the § 3553(a) factors, the Court
sentenced the Defendant to 63 months’ imprisonment for Count One and 84
months’ imprisonment for Count Two, consecutive to Count One and to any
other term of imprisonment thereafter imposed, for a total of 147 months’
imprisonment. [Id. at 14-15; see Doc. 138: Judgment].
The Defendant was represented by appointed counsel on appeal.
[See Fourth Cir. Case No. 24-4514, Doc. 3]. On appeal, counsel argued that
there was insufficient evidence to prove that the bank was insured by the
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FDIC at the time of the robbery; that the Court erred by denying Defendant’s
motion for judgment of acquittal; and that the Court abused its discretion by
denying Defendant’s post-trial motion for a competency evaluation. The
Fourth Circuit Court of Appeals affirmed on July 24, 2025. United States v.
Day, 2025 WL 2082666 (4th Cir. July 24, 2025). The Defendant filed a pro
se Petition for Rehearing, which was dismissed as untimely. [See Case No.
24-4514, Docs. 34, 35].
The Defendant filed the original Motion to Vacate on February 23,
2026.2 [Doc. 165]. The Motion to Vacate was seriously deficient and the
Court ordered the Defendant to amend. [Doc. 167]. The Defendant filed the
present Amended Motion to Vacate in which he appears to argue that: (1)
the Court failed to adequately consider his mitigation arguments as required
by United States v. Blue, 877 F.3d 513 (4th Cir. 2017); and (2) the Defendant
was unaware of Blue at sentencing, through no fault of his own, due to his
incarceration and an inadequate law library. [Doc. 171]. The Defendant
does not request any relief.3 [Id. at 13].
2 The Court relies on the docketing date because the Defendant does not certify the date
upon which he placed his petition in the prison’s mail system. See Houston v. Lack, 487
U.S. 266, 276 (1988) (establishing the prisoner mailbox rule); Rule 3(d), 28 U.S.C.A. foll.
§ 2255 (addressing inmate filings).
3 The Court declines to order the Defendant to correct this deficiency because such would
not affect the Court’s determination.
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II. STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation
of the Constitution or the 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, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings ...” in order to
determine whether the Defendant is entitled to any relief on the claims set
forth therein. After examining the record in this matter, the Court finds that
the arguments presented by Defendant can be resolved without an
evidentiary hearing based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION4
4 The Court declines to address procedural default. See generally Hill v. Braxton, 277
F.3d 701 (4th Cir. 2002) (pro se litigants are generally granted an opportunity to respond
before a procedural bar is applied sua sponte).
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A sentencing error is not cognizable on § 2255 review unless it is
constitutional, jurisdictional, or amounts to a “fundamental defect which
inherently results in a complete miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 346 (1974). Barring “extraordinary circumstances, ...
an error in the application of the Sentencing Guidelines cannot be raised in
a § 2255 proceeding.” United States v. Pregent, 190 F.3d 279, 283-84 (4th
Cir. 1999); United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir.
1999) (“misapplication of the [sentencing] guidelines typically does not
constitute a miscarriage of justice.”).
The Defendant’s sentence did not exceed the statutory maximum and
he does not identify any fundamental defect that resulted in a miscarriage of
justice. The Defendant’s claims that the Court erred in failing to fully consider
his mitigation arguments on the record or to grant him a substantial
downward departure are not cognizable claims under Section 2255. These
claims are, therefore, dismissed.
Even if these claims were cognizable on § 2255 review, they would be
denied on the merits. For a sentence to be procedurally reasonable “a
sentencing court must place on the record an ‘individualized assessment’
based on the particular facts of the case before it.” Blue, 877 F.3d at 518
(quoting United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)); see also
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United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (“District
courts are obligated to explain their sentences, whether those sentences are
within or beyond the Guidelines range ....”). This includes an adequate
discussion of a defendant’s nonfrivolous arguments for a downward
departure. Id.
While the Defendant contends that the Court failed to adequately
consider his mitigation arguments, the record is clear that the Court
exhaustively addressed these arguments at sentencing, noting that they
were unpersuasive and that they were specifically contrary to U.S.S.G. §
5K2.12. [Doc. 150 at 19-20]. The Court fully explained its sentencing
decision, including an application of the § 3553(a) factors, the Sentencing
Guidelines, and the statutory requirements. The Defendant has identified no
nonfrivolous grounds for departure that the Court neglected to address
adequately. The Defendant’s disagreement with its denial of a downward
departure is insufficient. Accordingly, even if these claims were properly
before the Court, they would be denied on the merits.
Finally, it appears that the Defendant may be attempting to argue that
the Court would have granted a downward departure sentence had
Defendant known about Blue at the time of sentencing. This is, in essence,
a claim of ineffective assistance of counsel. See generally Strickland v.
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Washington, 466 U.S. 688 (1984). The Defendant is prohibited from
asserting such a claim because he chose to represent himself at sentencing.
See Faretta v. California, 422 U.S. 806, 835 n.46 (1975) (noting that “a
defendant who elects to represent himself cannot thereafter complain that
the quality of his own defense amounted to a denial of ‘effective assistance
of counsel.’”) Therefore, to the extent that the Defendant is complaining of
the quality of his own defense, such claim is dismissed and denied.
IV. CONCLUSION
For the reasons stated herein, the Defendant’s Amended Motion to
Vacate is dismissed and denied.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, this Court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
(in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when
relief is denied on procedural grounds, a petitioner must establish both that
the dispositive procedural ruling is debatable and that the petition states a
debatable claim of the denial of a constitutional right).
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ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Amended
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody [Doc. 171] is DISMISSED AND DENIED.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
The Clerk is instructed to TERMINATE the Motion to Vacate [Doc.
165], which has been superseded.
IT IS SO ORDERED.
Signed: April 25, 2026
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