United States District Court, W.D. Missouri, Southern Division
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE
Michael Willoughby (“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 108 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. 11).
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
August 2, 2010, Petitioner pled guilty, absent a written plea
agreement, to one count of being a felon in possession of a
firearm. The Court designated Petitioner as an “armed
career criminal” under the Armed Career Criminals Act
(“ACCA”), 18 U.S.C. § 924(e)(1), based, in
part, on two prior Missouri convictions stemming from an
incident in which he sold drugs to two individuals nearly
simultaneously. In light of this designation, the Court
sentenced Petitioner to the ACCA's mandatory minimum of
15 years' imprisonment. Petitioner appealed, and the
Eighth Circuit reversed and remanded this matter for
resentencing, finding the Court erred in concluding
Petitioner consummated two separate drug deals for ACCA
purposes. United States v. Willoughby, 653 F.3d 738
(8th Cir. 2011).
Court ordered a revised Presentence Investigation Report
(“PSR”) in accordance with the Eighth Circuit
decision. In calculating Petitioner's United States
Sentencing Guidelines (“Guidelines”) range, the
Probation and Parole Office found he was eligible for an
enhanced base offense level because he had one prior
conviction that qualified as a “crime of violence,
” and one conviction that qualified as a
“controlled substance offense.” Specifically, the
revised PSR found Petitioner's prior Missouri conviction
for burglary qualified him for an enhancement under
Guidelines § 2K2.1(a). See PSR Third Addendum
¶ 1 (Doc. 36); PSR ¶ 36 (Doc. 19). This enhancement
yielded an advisory guideline range of 130 to 162 months.
Because this exceeded the statutory maximum of 120 months,
the guideline suggestion was reduced to 120 months'
imprisonment. The Court sentenced Petitioner to 114
months' imprisonment, 6 months below the statutory
maximum. Petitioner filed the instant motion on June 16,
2016. The Court withheld ruling while awaiting the Supreme
Court's opinion in Beckles. That decision was
handed down on March 6, 2017.
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 burglary 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. In his resentencing, 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 illegal sentence.
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 Deny Pending 28 U.S.C. § 2255 Motion on
the Merits (Doc. 11) is GRANTED.