United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
Jerry Jimenez (“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 69 months' imprisonment.
before the Court are Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 1) under 28 U.S.C. §
2255, Petitioner's Motion to Dismiss Petition Without
Prejudice (Doc. 15), and the Government's Motion to Lift
Stay and Deny Pending 28 U.S.C. § 2255 Motion on the
Merits (Doc. 16). Because the Supreme Court recently rejected
Petitioner's argument in Beckles v. United
States, 137 S.Ct. 886 (2017), his § 2255 motion and
motion to dismiss without prejudice are DENIED. The
Government's motion to deny Petitioner's § 2255
motion is GRANTED.
September 5, 2013, Petitioner pled guilty, without a written
plea agreement, to one count of being a felon in possession
of a firearm. On April 1, 2014, the Court sentenced him to 69
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 a
prior conviction that qualified as a “crime of
violence.” Specifically, the Court adopted the
Presentence Investigation Report (“PSR”) finding
that Petitioner's prior Missouri conviction for resisting
arrest by fleeing qualified him for an enhancement under
Guidelines § 2K2.1(a)(4)(A). PSR ¶¶ 9, 26
(Crim. Doc. 35). This resulted in a Guidelines sentencing
range of 57 to 71 months' imprisonment. Id.
¶¶ 58, 59. Petitioner appealed, and the Eighth
Circuit Court of Appeals affirmed his sentence on November
18, 2014. United States v. Jimenez, 583 F.App'x
569 (8th Cir. 2014).
window to file a petition for a writ of certiorari with the
Supreme Court elapsed in February 2015. Sup. Ct. R. 13
(“[A] petition for a writ of certiorari to review a
judgment in any case, civil or criminal, entered by . . . a
United States court of appeals . . . is timely when it is
filed with the Clerk of this Court within 90 days after the
entry of the judgment.”).
filed the instant § 2255 motion on June 15, 2016. The
Court withheld ruling while awaiting the Supreme Court's
opinion in Beckles. That decision was handed down on
March 6, 2017.
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. 15). 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.
16). 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.
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 resisting arrest by fleeing
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). 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