United States District Court, W.D. Missouri.
BARRETT J. CARROLL, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 5:12-CR-06015-DGK-1
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE
Barrett J. Carroll (“Carroll”) pled guilty to one
count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and the Court sentenced him to 92 months' imprisonment.
before the Court are Carroll's Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 1) under 28 U.S.C. §
2255, Motion to Stay and Hold Case in Abeyance (Doc. 4), and
Motion to Dismiss Case Without Prejudice (Doc. 15). Because
the Supreme Court recently rejected Carroll's argument in
Beckles v. United States, 137 S.Ct. 886 (2017), his
§ 2255 motion and motion to dismiss without prejudice
are DENIED. Carroll's motion to stay is DENIED AS MOOT.
6, 2013, Carroll pled guilty to one count of being a felon in
possession of a firearm, pursuant to a written plea
agreement. Plea Agrmnt. (Doc. 24). In this agreement, Carroll
waived his right to attack his sentence, directly or
collaterally, on any ground except claims of ineffective
assistance of counsel, prosecutorial misconduct, or an
illegal sentence. Id. ¶ 15. The agreement
defines an “illegal sentence” as one
“imposed in excess of the statutory maximum, ”
and states the term specifically “does not
include less serious sentencing errors, such as a
misapplication of the Sentencing Guidelines, an abuse of
discretion, or the imposition of an unreasonable
sentence.” Id. (emphasis in original). Carroll
does not challenge the validity of his plea agreement and
December 18, 2013, the Court sentenced Carroll to 92
months' imprisonment after carefully considering the
relevant factors and reviewing the United States Sentencing
Guidelines (the “Guidelines”). In calculating
Carroll's Guidelines range, the Court found he was
eligible for an enhanced base offense level because he had a
prior conviction that qualified as a “crime of
violence” under Guidelines § 4B1.2. Specifically,
the Court adopted the Presentence Investigation Report
(“PSR”) finding that Carroll's prior Missouri
conviction for first-degree burglary qualified him for an
enhancement under Guidelines § 2K2.1(a). See
PSR ¶¶ 14, 29 (Crim. Doc. 29). The Guidelines
calculation yielded an advisory imprisonment range of 120 to
150 months. But, because the statutory maximum term of
imprisonment for Carroll's offense is 10 years, the
Guideline suggestion was reduced to 120 months. Id.
¶ 65. The Court sentenced Carroll to 92 months'
imprisonment, 28 months below the Guidelines recommendation
and the statutory maximum. J. & Commitment (Crim. Doc.
35). Carroll did not file a direct appeal, and the judgment
became final on January 2, 2014. See Fed. R. App. P.
4(b)(1)(A)(i) (“In a criminal case, a defendant's
notice of appeal must be filed in the district court within
14 days after . . . the entry of either the judgment or the
order being appealed . . . .”).
filed the instant motion on June 16, 2016. The Court withheld
ruling while awaiting the Supreme Court's opinion in
Beckles. That decision was handed down on March 6,
The Court will not dismiss Carroll's § 2255 motion
without prejudice, and will consider the motion on its
Court first addresses Carroll's motion to dismiss his
§ 2255 motion without prejudice so he may file another
motion pursuant to § 2255 without that motion being
considered a second or successive petition requiring the
permission of the Eighth Circuit to proceed (Doc. 13). The
Government opposes this motion, arguing the Court
“should not allow a state or federal prisoner to
voluntarily dismiss a post-conviction motion to avoid
application of an impending or recently issued adverse
decision.” Gov't Supp. Response at 2-3 (Doc. 12).
Even if dismissing this motion without prejudice could allow
Carroll to file another § 2255 motion without permission
from the Eighth Circuit, cf. Felder v. McVicar, 113
F.3d 696, 698 (7th Cir. 1997) (“[A] petitioner for
habeas corpus cannot be permitted to thwart the limitations
on the filing of second or successive motions by withdrawing
his first petition as soon as it becomes evident that the
district court is going to dismiss it on the merits.”);
Thai v. United States, 391 F.3d 491, 495 (2d Cir.
2004) (“[I]f a petitioner clearly concedes upon
withdrawal of a § 2255 petition that the petition lacks
merit, the withdrawal is akin to a dismissal on the merits
and subsequent petitions will count as successive . . .
.”), the Court will not acquiesce in this sort of
gamesmanship. Carroll's motion to dismiss without
prejudice is denied, and the Court will consider his §
2255 motion on its merits.
Carroll's enhanced base level sentence did not deprive
him of due process of law.
district court may vacate a sentence if it “was imposed
in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). A § 2255 motion
“is not a substitute for a direct appeal, and is not
the proper way to complain about simple . . . errors.”
Anderson v. United States, 25 F.3d 704, 706 (8th
Cir. 1994) (internal citation omitted).
argues his prior conviction for first-degree burglary no
longer qualifies as a crime of violence in the wake of
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Supreme Court decision invalidating the Armed Career Criminal
Act's (“ACCA”) residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii). Carroll contends that under
Johnson, the Court's Guidelines calculation
violated due process.
argument is without merit. Carroll was not sentenced under
the ACCA, but instead under a similarly-worded provision in
the Guidelines. See U.S.S.G. § 4B1.2. The
Guidelines are not subject to a void-for-vagueness challenge
under the Due Process Clause like the ACCA's residual
clause was in Johnson. Beckles, 137 S.Ct.
at 896. Unlike the ACCA, the Guidelines do not fix the
permissible statutory range of punishment. Id. at
894. Instead, they merely guide the exercise of a sentencing
court's discretion in choosing an appropriate sentence
within the permissible range. Id. ...