United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Guy Allen Millner
Jr.'s Motion to Vacate [ECF No. 1] and Amended Motion to
Vacate [ECF No. 3].
December 20, 2006, Petitioner Guy Allen Millner, Jr.
(“Petitioner) was indicted for the federal offense of
knowingly and intentionally possessing pseudoephedrine, in
violation of 21 U.S.C. § 841(c)(2). On February 14,
2007, a superseding indictment was filed on November 29,
2006, adding a second count of knowingly and intentionally
possession pseudoephedrine in violation of 21 U.S.C. §
841(c)(1). On February 20, 2007, Petitioner pled guilty to
Count II of the superseding indictment.
determine Petitioner's sentence, the Court used the 2006
Guidelines Manual and calculated Petitioner's base
offense level at 30. His offense level was increased to 32
because he was found to be a career offender. He received a
three-level adjustment for acceptance of responsibility. His
total offense level was 29, and his criminal history category
was VI. The guideline range was 151 to 188 months. On June
28, 2007, the Court sentenced Petitioner to a term of 151
months, and a two-year term of supervised release.
the United States Supreme Court decided Johnson v. United
States, 135 S.Ct. 2251 (2015), Petitioner filed the
present motion to correct his sentence asserting he is no
longer a career offender in light of the Supreme Court's
decision in Johnson. Petitioner's case was
stayed pending a decision in United States v.
Beckles, which the Supreme Court decided on March 6,
2017. 137 S.Ct. 886 (2017).
Johnson, the Supreme Court determined the residual
clause in the definition of “violent felony” in
the Armed Career Criminal Act (“ACCA”) was
unconstitutionally vague. 135 S.Ct. 2551. Subsequently, in
United States v. Welch, the Supreme Court ruled
Johnson was a substantive new rule, retroactive on
collateral review. 136 S.Ct. 1257 (2016). In
Beckles, the Supreme Court held the United States
Sentencing Guidelines, which uses the same language used in
the ACCA, which was determined to be unconstitutionally vague
in Johnson, were not subject to a void for vagueness
challenge, because they are advisory, not mandatory. 137
S.Ct. 886 (2017).
asserts his sentence should be vacated because he was
sentenced under an effectively mandatory guidelines regime
and the ruling in Johnson applies to mandatory
guideline sentences. In response, the Government argues
Petitioner's motion must be denied because (1) Petitioner
knowingly waived his right to file a § 2255 motion when
he pled guilty, (2) his claim is time-barred and
Johnson does not retroactively apply to advisory
guidelines, (3) Petitioner's claim is procedurally
defaulted, (4) his claim is not recognizable under §
2255, and (5) his claim is without merit pursuant to
Court will not address all of the procedural arguments raised
by the Government and Petitioner in their briefs, because
Petitioner's claim is without merit after the Supreme
Court's ruling in Beckles. Thus, even if the
Court were to find in favor of Petitioner on all of the
procedural arguments, his claim would still fail.
Petitioner's argument the guidelines in 2006 were
“effectively mandatory” is interesting, the
ruling in Beckles forecloses his argument. The
defendant, in Beckles, was sentenced on October 17,
2007, and the 2006 guidelines manual was used to determine he
was a career offender. 137 S.Ct. at 890. The same guidelines
applied in this case just four months after Petitioner was
sentenced, were determined to be advisory by the Supreme
Court, which stated “because they merely guide the
district court's discretion, the Guidelines are not
amenable to a vagueness challenge.” Id. at
894. This Court cannot conclude the same guidelines as
analyzed in the Supreme Court's opinion were mandatory,
in direct contravention of the Supreme Court's opinion
they were not mandatory. Therefore, Petitioner's sentence
may not be reduced pursuant to Johnson.
IT IS HEREBY ORDERED that Petitioner Guy
Allen Millner Jr.'s Motion to Vacate [ECF No. 1] and
Amended Motion to Vacate [ECF No. 3] are