United States District Court, W.D. Missouri, Western Division
RAYMOND D. SMITH, Petitioner,
UNITED STATES OF AMERICA, Respondent. Crim. No. 4:14-CR-00163-DGK-1
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE
Raymond D. Smith (“Smith”) 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 110 months' imprisonment.
before the Court are Smith's Motion to Vacate, Set Aside,
or Correct Sentence (Doc. 1) under 28 U.S.C. § 2255,
Motion to Dismiss Case Without Prejudice (Doc. 12), and the
Government's Motion to Lift Stay and Deny Pending 2255
Motion on the Merits (Doc. 11). Because the Supreme Court
recently rejected Smith'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 dismiss on the merits is
October 31, 2014, Smith pled guilty to one count of being a
felon in possession of a firearm, pursuant to a written plea
agreement. Plea Agrmnt. (Crim. Doc. 23). In this agreement,
Smith 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). Smith
does not challenge the validity of his plea agreement and
April 21, 2015, the Court sentenced Smith to 110 months'
imprisonment after carefully considering the relevant factors
and reviewing the United States Sentencing Guidelines (the
“Guidelines”). In calculating Smith'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” under
Guidelines § 4B1.2. Specifically, the Court adopted the
Presentence Investigation Report (“PSR”) finding
that Smith's prior Missouri conviction for resisting
arrest creating a substantial risk of serious injury or death
qualified him for an enhancement under Guidelines §
2K2.1(a). See PSR ¶¶ 16, 40 (Crim. Doc.
24). The Guidelines calculation yielded an advisory
imprisonment range of 84 to 105 months. The Court sentenced
Smith to 110 months' imprisonment, 5 months above the
Guidelines recommendation and 10 months below the statutory
maximum. J. & Commitment (Crim. Doc. 27). Smith did not
file a direct appeal.
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,
The Court will not dismiss Smith's § 2255 motion
without prejudice, and will consider the motion on its
Court first addresses Smith'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. 12). 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. 11). Even if
dismissing this motion without prejudice could allow Smith to
file another § 2255 motion without permission from the
Eighth Circuit, cf. 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 . . . .”); 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.”), the Court will not acquiesce in this sort of
gamesmanship. Smith's motion to dismiss without prejudice
is denied, and the Court will consider his § 2255 motion
on its merits.
Smith'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 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). Smith contends that under
Johnson, the Court's Guidelines calculation
violated due process.
argument is without merit. Smith 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 ...