United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Gene Lemay
Barris's amended motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (Doc. 10), and the
Federal Public Defender's motion to withdraw as
Petitioner's counsel (Doc. 11). For the following
reasons, the Court will grant the motions.
September 15, 2014, Petitioner pled guilty to one count each
of possession with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A)(viii); and being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (Crim. Docs. 36-37 in United States v.
Barris, No. 1:14-cr-2-JAR-1 (E.D. Mo.)). The presentence
investigation report revealed that Petitioner had several
prior felony convictions, and recommended that the Court
impose an enhanced sentence on the felon-in-possession count
pursuant to the Armed Career Criminal Act, 18 U.S.C. §
924(e) (“ACCA”), as well as the U.S. Sentencing
Guidelines' career-offender provision, U.S.S.G. §
4B1.2(a) (Crim. Doc. 40).
December 15, 2014, the Court sentenced Petitioner to two
concurrent 216-month terms of imprisonment, followed by two
concurrent five-year terms of supervised release (Crim. Docs.
53-54). Notably, without objection, the Court enhanced
Petitioner's sentence on the felon- in-possession count
under the ACCA, and applied the career-offender Guideline
provision in calculating Petitioner's advisory Guidelines
August 2, 2016, Petitioner initiated this proceeding by
filing a motion to vacate, set aside, or correct his
sentence, under 28 U.S.C. § 2255 (Doc. 1). In his
motion, as amended, he argues that his sentence should not
have been enhanced under the ACCA, as he did not have three
or more previous qualifying convictions, and that the
career-offender Guidelines provision also should not have
been applied (Doc. 10). The Federal Public Defender has also
moved to withdraw as counsel for Petitioner, citing a
conflict of interest (Doc. 11). Respondent agrees that
Petitioner should be resentenced without application of the
ACCA or the career-offender Guideline provision. Moreover,
Respondent has agreed to waive the statute of limitations set
forth in 28 U.S.C. § 2255(f) (Doc. 13).
sentence for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) is generally no more
than ten years in prison. 18 U.S.C. § 924(a)(2). If,
however, the defendant has three prior convictions for either
a “violent felony” or a “serious drug
offense, ” or both, the ACCA increases the statutory
range of punishment in felon-in-possession cases to a
mandatory minimum of fifteen years, and maximum of life, in
prison. 18 U.S.C. § 924(e).
the parties agree that Petitioner did not have at least three
prior convictions for a “violent felony” or a
“serious drug offense, ” as those terms are
defined in the ACCA. The Court has carefully reviewed the
record, and agrees that Petitioner did not have three or more
ACCA predicate offenses at the time he committed the instant
offenses. The Court therefore concludes that Petitioner's
sentence on his felon-in-possession count is unconstitutional
because it exceeds that statutorily authorized sentence for
his offense of conviction. Sun Bear v. United
States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc)
(sentence imposed in excess of statutory authority is
IT IS HEREBY ORDERED that the Petitioner's amended motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 (Doc. 10) is GRANTED. A new sentencing
hearing will be scheduled forthwith.
FURTHER ORDERED that the Clerk of the Court is directed to
docket a copy of this Memorandum and Order in
Petitioner's criminal case, United States v.
Barris, No. 1:14-cr-00002-JAR-1 (E.D. Mo.).
FURTHER ORDERED that the Federal Public Defender's motion
for leave to withdraw (Doc. 11) is GRANTED.
FINALLY ORDERED that, pursuant to 18 U.S.C. §
3143(a)(1), Petitioner shall remain in the custody of the
Federal Bureau of Prisons pending resentencing. A
separate order setting a new sentencing hearing and