United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
the Court are the Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody and Amended Motion to Correct Sentence Under 28
U.S.C. § 2255 filed by Movant Steve Rollins.
4:16CV599JCH, ECF 1 & 8.
April 26, 2016, Movant, pro se, filed a document titled
“Defendant's Request for Counsel.”
4:16CV599JCH, ECF 1. In the case caption of the document,
Movant referenced his two prior criminal cases,
4:08CR240CDP and 4:08CR382JCH. Specifically, Movant
stated that in light of Johnson v. United States,
135 S.Ct. 2551 (2015), he should not have been charged as
either “a career or armed career offender” in his
criminal cases. In support of this position, Movant stated
that his presentence report referenced State convictions for
unlawfully entering an inhabitable structure. The court
docketed Movant's “Request for Counsel” as
two separate § 2255 motions. 4:16CV598CDP, ECF 1;
4:16CV599JCH, ECF 1.
in Johnson, 135 S.Ct. at 2557-58, the Supreme Court
held that imposing an increased sentence under the residual
clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii) (a felony that “involves
conduct that presents a serious potential risk of physical
injury to another, ” should be treated as a
“violent felony”) violates the Constitution's
guarantee of due process.
4:16CV598CDP, the court addressed Movant's conviction in
No. 4:08CR240CDP, in which Movant pled guilty to possessing a
firearm as a convicted felon. At sentencing the court had
found that Movant had two prior Missouri felony convictions
for burglary second degree of a building and one prior felony
conviction for burglary second degree of a dwelling house, in
addition to two felony convictions for burglary second degree
of an inhabitable structure. As such, the court found that
Movant was an armed career criminal under the ACCA
and imposed an enhanced sentence of 180 months imprisonment.
In No. 4:16CV598CDP, the court initially denied Movant's
§ 2255 Motion. 4:16CV598CDP, ECF 19. Movant appealed and
the parties filed a joint motion for remand for resentencing
in light of United States v. Naylor, 887 F.3d 397
(8th Cir. 2018) (en banc) (holding prior Missouri
convictions for second degree burglary did not qualify as
“violent felonies” under the ACCA). After the
Eighth Circuit granted the joint motion, the district court
ordered the probation office to prepare a “revised
resentencing report.” 4:08CR240CDP, ECF 84. Movant
accepted the revised resentence report and was resentenced to
a term of 33 months. 4:08CR240CDP, ECF 87 & 91.
matter currently before this Court, No. 4:16CV599JCH,
challenges Movant's sentence in No. 4:08CR382JCH, in
which case Movant pled guilty to two counts of possession of
pseudoephedrine knowing it would be used to manufacture
methamphetamine, in violation of 21 U.S.C § 841(c)(2).
Movant was sentenced, in No. 4:08CR382JCH, ECF 222, as a
career offender under the United States Sentencing
Guidelines (USSG) § 4B1.1,  to 151 months imprisonment,
with the sentence to run concurrently with the sentence he
was to serve in No. 4:08CR240CDP. On July 28, 2016, Movant
through counsel, filed an Amended Motion to Correct Sentence
Under 28 U.S.C. § 2255 which asserts that Movant is no
longer an armed career criminal in light of Johnson
and that, therefore, his sentence is “illegal.”
4:16CV599JCH, ECF 8 at 1-3. Also, on July 28, 2016, the Court
ordered the Probation Office to prepare a “new
Resentence Report relative to Movant's contentions under
Johnson.” 4:08CR382JCH, ECF 336. On January
11, 2018, the Government accepted the new resentence report,
and no response was filed on behalf of Movant. 4:08CR382JCH,
ECF 341-42. The Probation Office sent Movant a Special
Investigation letter which stated that it was “the
position of the probation office that [his] Career Offender
status was accurately applied and [that] a new resentencing
presentence report [was] not warranted.” 4:08CR382JCH,
ECF 344. On February 12, 2018, in the instant matter, the
Government filed an Opposition to Movant's § 2255
Motion. 4:16CV599JCH, ECF 17. Movant has not filed a reply.
stated above, Johnson, 135 S.Ct. at 2557-58, held
that the residual clause of the ACCA is unconstitutional.
Movant's sentence in No. 4:08CR382JCH, which is the
sentence challenged in the § 2255 Motion under
consideration, was not based on armed career criminal status
under the residual clause of the ACCA; rather, Movant was
sentenced as a Career Offender pursuant to USSG 4B1.1. The
“advisory Guidelines are not subject to vagueness
challenges under the Due Process Clause.” Villa v.
United States, 701 Fed.Appx. 534, 535 (8th
Cir. 2017) (per curiam) (unpublished) (citing Beckles v.
United States, 137 S.Ct. 886, 895 (2017)). As such, the
Court finds that Johnson, 135 S.Ct. at 2557-58, is
not applicable to Movant's sentence in No. 4:08CR382JCH
and that, therefore, Movant's § 2255 Motion and
Amended Motion are without merit.
IT IS HEREBY ORDERED that Movant's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (ECF 1) and
his Amended Motion to Correct Sentence Under 28 U.S.C. §
2255 (ECF 8) are DENIED, and
DISMISSED, with prejudice and that a
separate Order of Dismissal with accompany this Memorandum
and Order; and
IS FURTHER ORDERED that, because Movant cannot make
a substantial showing of the denial of a constitutional
right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997).
 On May 9, 2018, No. 4:08CR240 was
reassigned from the Honorable Carol E. Jackson to the
Honorable Catherine D. Perry.
 United States Sentencing Guidelines
§ 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony ...