United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Michael Bass to
supplement his motion to vacate his conviction and sentence.
After reviewing movant's motion, it is apparent he is
seeking reconsideration of the Court's September 22, 2016
Order denying his motion to vacate and dismissing this
action. His motion for reconsideration will be denied.
motion for reconsideration, movant argues, once again, that
he is entitled to relief from his conviction and sentence
under Johnson v. United States, 135 S.Ct. 2551
(2015). In Johnson, the Supreme Court held that the
“residual clause” of the Armed Career Criminal
Act (“the ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague.
ACCA enhances the punishment for firearms offenses under 18
U.S.C. § 922(g) when the defendant has at least three
prior convictions for a serious drug offense or a
“violent felony.” The term “violent
felony” is defined in the ACCA as felony offense that
“(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (ii) is burglary, arson, or extortion, involves
the use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(B) (emphasis
added). The “otherwise involves” language of the
ACCA is the residual clause that the Supreme Court found
unconstitutional. Johnson, 135 S.Ct. at 2563.
noted in the Court's prior Memorandum and Order, movant
pled guilty to controlled substance offenses and felon in
possession of a firearm, and the Court sentenced him to 240
months' imprisonment. United States v. Bass, No.
4:11-CR-223 AGF (E.D. Mo.).
determining movant's sentence, the Court determined that
although movant had three qualifying burglary convictions
such that he would have been eligible for sentence
enhancements under the ACCA or Chapter Four of the United
States Sentencing Guidelines, these qualifying convictions
would not be used for enhancements. Thus, it is important to
note in movant's case that the Court did not enhance
movant's sentence under either the ACCA or Chapter Four
of the U.S.S.G.
the Court determined that the offense level from Chapters Two
and Three of the Guidelines applied and sentenced movant
accordingly. Because the Court did not enhance his
sentence under the ACCA or Chapter Four, Johnson
simply does not provide movant with relief from his sentence.
motion for reconsideration, movant spends the entirety of his
brief arguing that the new Supreme Court case of Mathis
v. United States, 136 S.Ct. 2243 (2016), has changed the
way his prior burglary convictions should be used for
sentencing enhancements under Missouri law. But because the
Chapter Four and Armed Career Criminal Act offense levels
were not utilized in his sentencing calculations,
Mathis has no applicability to his conviction or
sentence. Therefore, movant's motion for reconsideration
must be denied.
movant has failed to make a substantial showing of the denial
of a constitutional right, which requires a demonstration
“that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right.” Khaimov v. Crist, 297
F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the
Court will not issue a Certificate of Appealability. 28
U.S.C. § 2253(c).
IT IS HEREBY ORDERED that movant's motion for
reconsideration of the denial of his motion to vacate [Doc.
#10] is DENIED.
FURTHER ORDERED that the Court will not issue a Certificate
Movant's prior convictions for
state burglary could only have been used for sentencing
enhancements under either the ACCA or under Chapter Four of
the U.S.S.G. Since the Court did not use the burglary
convictions for enhancements under Chapter Four of the
Sentencing Guidelines, or under the Armed Career Criminal
Act, he is not entitled to a reduction in his sentence even
if the Court were to determine that movant's ...