United States District Court, W.D. Missouri, Western Division
MICHAEL E. THOMAS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 4:13-CR-00008-DGK
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
Michael E. Thomas (“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 96 months' imprisonment.
before the Court are Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 1) under 28 U.S.C. §
2255, and the Government's Motion to Lift Stay and Deny
Pending 28 U.S.C. § 2255 Motion on the Merits (Doc. 13).
Because the Supreme Court recently rejected Petitioner's
argument in Beckles v. United States, 137 S.Ct. 886
(2017), his § 2255 motion is DENIED. The
Government's motion to deny Petitioner's motion is
March 3, 2013, Petitioner pled guilty, pursuant to a written
plea agreement, to one count of being a felon in possession
of a firearm. Plea Agrmnt. (Crim. Doc. 27). 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. 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).
Petitioner does not challenge the validity of his plea
agreement and this waiver.
26, 2013, the Court sentenced Petitioner to 96 months'
imprisonment after carefully considering the relevant factors
and reviewing the United States Sentencing Guidelines (the
“Guidelines”). In calculating Petitioner's
Guidelines range, the Probation and Parole Office found he
was eligible for an enhanced base offense level because he
had two prior convictions that qualified as “crimes of
violence.” Specifically, the Presentence Investigation
Report (“PSR”) states Petitioner's prior
Missouri convictions for second-degree burglary and resisting
arrest by fleeing qualified him for an enhancement under
Guidelines § 2K2.1(a). See PSR ¶¶ 12,
29, 42 (Crim. Doc. 33). This enhancement would have elevated
Petitioner's base offense level to 24, but the PSR used
the parties' agreed-upon base offense level of 20 in
calculating Petitioner's range. This yielded an advisory
imprisonment range of 77 to 96 months. The Court sentenced
Petitioner to the top end of the advisory range, and below
the statutory maximum of 10 years. Petitioner did not file a
filed the instant motion on June 21, 2016. The Court withheld
ruling while awaiting the Supreme Court's opinion in
Beckles. That decision was handed down on March 6,
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
court's discretion in choosing an appropriate sentence
within the permissible range. Id. Here, Petitioner
was sentenced to a term of imprisonment that was not in
excess of the statutory maximum and, therefore, not an
Petitioner's claim is based on the same vagueness
challenge the Supreme Court rejected in Beckles, it
these reasons, Petitioner's Motion to Vacate, Set Aside,
or Correct Sentence (Doc. 1) is DENIED, the Court will not
hold an evidentiary hearing, and the Court declines to issue
a certificate of appealability. The Government's Motion
to Lift Stay and ...