United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE
Byron Whittington (“Petitioner”) 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 102 months' imprisonment.
before the Court are Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 1) under 28 U.S.C. §
2255, Amended Motion to Vacate (Doc. 9), and Motion to
Dismiss Petition Without Prejudice (Doc. 20). The Government
has also filed a Motion to Lift Stay and Deny Pending 28
U.S.C. § 2255 Motion on the Merits (Doc. 21). Because
the Supreme Court recently rejected Petitioner's argument
in Beckles v. United States, 137 S.Ct. 886 (2017),
his § 2255 motion, amended § 2255 motion, and
motion to dismiss without prejudice are DENIED. The
Government's motion to deny Petitioner's § 2255
motion is GRANTED.
September 11, 2013, Petitioner pled guilty to one count of
being a felon in possession of a firearm, pursuant to a
written plea agreement. In this agreement, Petitioner 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.
Plea Agrmnt. ¶ 15 (Crim. Doc. 26). 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). Petitioner does not challenge the validity of his
plea agreement and this waiver.
January 30, 2014, the Court sentenced him to 102 months'
imprisonment under the United States Sentencing Guidelines
(the “Guidelines”). In calculating
Petitioner's Guidelines range, the Court found he was
eligible for an enhanced base offense level because he had
two prior convictions that qualified as “crimes of
violence.” Specifically, the Court adopted the
Presentence Investigation Report (“PSR”) finding
that Petitioner's prior Missouri convictions for
second-degree burglary qualified him for an enhancement under
Guidelines § 2K2.1(a)(1). PSR ¶¶ 13, 36, 37
(Crim. Doc. 27). This ultimately resulted in an advisory
Guideline range of 120 to 150 months' imprisonment.
Id. ¶ 77. But, because the statutory maximum
term of imprisonment for Petitioner's crime is 10 years,
this recommendation was reduced to 120 months. Id.
The Court sentenced Petitioner below this recommendation, and
he did not appeal.
filed his first § 2255 motion on February 22, 2016, and
filed an amended motion on April 8, 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 Petitioner's § 2255
motion without prejudice, and will consider the merits of his
Court first addresses Petitioner's motion to dismiss this
matter without prejudice so he may file another motion
pursuant to § 2255 without it being considered a second
or successive petition requiring the permission of the Eighth
Circuit to proceed (Doc. 20). 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 Mot. at 3 (Doc.
21). Even if dismissing this motion without prejudice could
allow Petitioner 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. Petitioner's motion to dismiss
without prejudice is denied, and the Court will consider the
merits of his § 2255 motion.
Petitioner'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 convictions for second-degree burglary no
longer qualify as crimes 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). Petitioner contends that under
Johnson, the Court's Guidelines calculation
violated due process.
argument is without merit. Petitioner 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 ...