United States District Court, W.D. Missouri, Western Division
RAPHAEL C. GANT, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 11-00288-01-CR-W-DGK
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE
Raphael C. Gant (“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 84 months' imprisonment.
before the Court are Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 1) under 28 U.S.C. §
2255, the Government's Motion to Dismiss (Doc. 6),
Petitioner's Motion to Dismiss without Prejudice (Doc.
13), and Government's Motion to Lift Stay and Deny
Pending 28 U.S.C. § 2255 Motion on the Merits (Docs. 14
& 17). Because the Supreme Court recently rejected
Petitioner's argument in Beckles v. United
States, 137 S.Ct. 886 (2017), his § 2255 motion and
his motion to dismiss without prejudice are DENIED. The
Government's motions to Dismiss and Deny Petitioner's
motion are GRANTED.
April 18, 2012, 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. 18). 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.
September 5, 2012, the Court sentenced Petitioner to 84
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 a prior conviction that qualified as a
“crime of violence.” Specifically, the
Presentence Investigation Report (“PSR”) found
Petitioner's prior Missouri conviction of resisting
arrest by fleeing qualified him for an enhancement under
Guidelines § 2K2.1(a). See PSR ¶¶ 15,
28 (Crim. Doc. 20). This enhancement elevated
Petitioner's base offense level to 22, yielding an
advisory imprisonment range of 84 to 105 months. The Court
sentenced Petitioner to the bottom end of the advisory range,
and below the statutory maximum of 10 years. Petitioner did
not file a direct appeal.
filed the instant motion on June 15, 2016. The Court withheld
ruling while awaiting the Supreme Court's opinion in
Beckles, which was handed down on March 6, 2017.
The Court will not dismiss Gant's § 2255 motion
without prejudice, and will consider the merits of his
Court first addresses Petitioner'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 Mot. at 3 (Doc. 14). 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.
Gant'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 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. They merely guide the exercise of a sentencing
court's discretion in choosing an appropriate sentence
within the permissible ...