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United States v. Beck

United States District Court, D. Nebraska

July 6, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ADAM BECK, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the court on the defendant's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, Filing No. 55. This is Beck's first § 2255 motion. The court held a hearing on the motion on June 22, 2016.

         I. BACKGROUND

         Pursuant to a binding plea agreement under Fed. R. Crim. P. 11(c)(1)(C), [1] Beck entered a plea of guilty to a charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) and was sentenced to a term of imprisonment of 110 months, followed by a term of supervised release of three years. Filing No. 43, Plea Agreement. Filing No. 43, Plea Agreement; Filing No. 52, Judgment. The plea agreement also resolved a charge for a violation of supervised release in Case No. 8:07CR165, in that the parties agreed that the defendant would be sentenced to 6 concurrent months of imprisonment for that charge. Filing No. 43, Plea Agreement at 8. The plea agreement also provided that the parties had no agreement regarding the applicable Guidelines, but that, if the defendant were determined to be a career offender under U.S.S.G. § 4B1.1, the applicable offense level shall be determined pursuant to U.S.S.G. § 4B1.1(b) and the defendant would be criminal history category VI. Id. at 6. The court accepted the defendant's plea, but did not approve the plea agreement pending the preparation of a Presentence Investigation Report ("PSR") by the Probation Office. Filing No. 40, text minute entry.

         The record shows that, in the PSR, the Probation Office calculated the defendant's base offense level to be 24 under U.S.S.G. § 2K2.1(a)(2) for committing the offense subsequent to sustaining two felony convictions: one for drug distribution and one for a crime of violence, that is, burglary. Filing No. 50, PSR (sealed) at 7, 9. The base offense level was adjusted upward by two levels for an offense involving three or more firearms under U.S.S.G. § 2K2.1(b)(1)(A), and by two levels for possession of a stolen firearm under U.S.S.G. § 2K2.1(b)(4)(A), for an adjusted offense level of 28. Id. at 8. After subtracting three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, the defendant's total offense level was 25. Id. Based on the assessment of 15 criminal history points, the defendant was found to have a criminal history category of VI, resulting in a Guidelines sentencing range of 110 to 120 months. Filing No. 50, PSR at 10.

         With respect to the supervised release violation in Case No. 8:07CR165, the PSR reflects that "the parties agreed that the sentence in the supervised release violation case (8:07CR165) will run concurrent with the sentence imposed in this case." Filing No. 50, PSR at 18. Noting that the "probation officer supervising Mr. Beck has recommended 24 months imprisonment, with no supervision to follow, " the PSR acknowledged that "if the Court honors the Plea Agreement, the defendant benefits by not serving any additional period of incarceration on the violation." Id. The defendant was arrested on February 25, 2013 on a federal warrant and has been in custody since then. Filing No. 16, arrest warrant returned executed (restricted); Filing No. 50, PSR at

         1. He has served just over 40 months.

         At the § 2255 hearing, the parties agreed that absent the enhancement for the burglary offense, the defendant's sentencing range on the weapon charge would have been 77 to 96 months (representing a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4), plus 2 for number of weapons, plus 2 for a stolen weapon, less 3 for acceptance of responsibility, for a total offense level of 21 at criminal history category VI).

         The defendant seeks relief under Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court held that imposing an increased sentence pursuant to the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), violates due process under the Fifth Amendment. Johnson, 135 S.Ct. at 2563. The ACCA gives three definitions of "violent felony." 18 U.S.C. § 924(e)(2)(B). It refers to any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i) (the "elements clause" or "force clause"). It also covers any offense that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The first 9 words of that subsection are called the "enumerated crimes clause, " and the last 13 are called the "residual clause." See id. The Supreme Court found the residual clause unconstitutionally vague, but did not invalidate the elements clause or the enumerated crimes of the ACCA's definition of a violent felony. Johnson, 135 S.Ct. at 2563. The Guidelines definition of a crime of violence contains the same definitions. Compare U.S.S.G. § 4B1.2(a)(1) & (2), with 18 U.S.C. § 924(e)(2)(B)(i) & (ii). The decision in Johnson was given retroactive effect on collateral review by the Supreme Court. Welch v. United States, 136 S.Ct. 1257, 1265 (April 18, 2016).

         Beck contends that he was sentenced improperly under the Guidelines career-offender provisions, arguing that his conviction for burglary no longer qualifies, post-Johnson, as a "crime of violence" under either the residual or the force clauses, and also does not equate to the enumerated offense of generic burglary under this court's precedent.[2] The government has conceded that Johnson applies to both ACCA or Guidelines career-offender sentences pending on direct appeal, and to initial collateral attacks on ACCA-enhanced sentences. See Filing No. 57, Government Brief at 1. The government argues, however, that the Johnson decision is not retroactive with respect to a collateral challenge to a Guidelines-enhanced sentence under the career-offender residual clause. Id. at 4. At the hearing, the government also challenged the defendant's contention that Beck's conviction for burglary did not amount to a crime of violence, advocating use of the modified categorical approach to determine whether Beck's conviction for burglary matched the elements of the generic crime.[3]

         II. DISCUSSION

         The court must first determine the effect of the parties' binding plea agreement on the motion.[4] Next, the court must determine whether the Johnson holding is applicable to the Guidelines career-offender provision, which is identical to the ACCA provision that was invalidated in Johnson, and if so, whether the new substantive rule announced in Johnson can be retroactively applied on collateral review in a case involving a challenge to a Guidelines-enhanced sentence. Last, the court must determine whether a conviction for burglary under Nebraska law is a crime of violence.

         A. Section 2255 Standards

         Under 28 U.S.C. § 2255, a court may grant relief to a federal prisoner who moves to vacate, set aside or correct his sentence on any of the following grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Section 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries that are outside the ambit of a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987).

         The harmless error standard of review applies to § 2255 motions. United States v. Clay, 720 F.3d 1021, 1027 n.5 (8th Cir. 2013). Under that standard, a constitutional error does not require reversal of conviction unless the petitioner can show that the error was of such magnitude as to have a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). "When a defendant is sentenced under an incorrect Guidelines range-whether or not the defendant's ultimate sentence falls within the correct range-the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error" and can be relied upon by a defendant to show an effect on his substantial rights. Molina-Martinez v. United States, 136 S.Ct. 1338, 1345, 1349 (2016)(involving an unpreserved error on direct appeal); see United States v. Robinson, 2016 WL 3407698, at *2 (8th Cir. 2016) (finding that a reasonable probability that absent the error the defendant would have received a shorter sentence, and concluding that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings).

         B. Rule 11(c)(1)(C) Agreement

         A defendant who has entered into a binding plea agreement under Fed. R. Crim. P. 11(c)(1)(C) is eligible for a sentence reduction under limited circumstances. See, e.g., Hodge v. United States, 554 F.3d 372, 374 (3d Cir. 2009); United States v. Williams, 158 F.3d 736, 737-40 (3d Cir. 1998) (claims attacking plea agreements are raised in § 2255 motions); 18 U.S.C. § 3582(c)(3) (a sentence of imprisonment may be modified for a defendant who was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission). Under § 3582(c)(3) a defendant is eligible for a sentence reduction based on a retroactive amendment to the Guidelines only if the "agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently lowered by the Commission.") Freeman v. United States, 564 U.S. 522, 534 (2011) (plurality opinion) (Sotomayor, J., concurring in the judgment)(emphasis added); see United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012) (in the Eighth Circuit, Justice Sotomayor's concurring opinion in Freeman is controlling).[5] The use of a Guidelines sentencing range must be "evident from the agreement itself[, ]" for example, the agreement "may call for [a] defendant to be sentenced within a particular Guidelines sentencing range, " or may otherwise "make clear that the basis for [a] specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty." Id. at 538-39.

         Otherwise, the defendant's sentence is not based on the Guidelines, but is based on the agreement. United States v. Bailey, 820 F.3d 325, 329 (8th Cir. 2016) ("Strictly speaking, the plea agreement itself is the foundation for a sentence in the Rule 11(c)(1)(C) context). If the plea agreement "does not indicate the parties' intent to base the term of imprisonment on a particular Guidelines range subsequently lowered by the [Sentencing] Commission, then § 3582(c)(2) simply does not apply." Freeman, 564 U.S. at 540 n.5. The basis for relief from a sentence imposed pursuant to a binding plea agreement under a mistaken belief as to the sentence required under federal law is a motion under § 2255. United States v. Bailey, 777 F.3d 904, 907 (7th Cir. 2015).

         Generally speaking, in the Eighth Circuit, plea agreements are viewed as contracts, requiring the parties to fulfill their obligations under that contract. United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir. 2006); United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc). "'A plea agreement is more than merely a contract between two parties, however, and must be attended by constitutional safeguards to ensure a defendant receives the performance he [or she] is due.'" United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (quoting United States v. Britt, 917 F.2d at 353, 359 (8th Cir. 1990); United States v. McGovern, 822 F.2d 739, 743 (8th Cir. 1987) ("A plea agreement, however, is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system."); United States v. Frownfelter, 626 F.3d 549, 554 (10th Cir. 2010) (noting that "remedial decision-making is guided not merely by contract principles, but by 'considerations of fairness and the integrity of the judicial system.'") (citation omitted). Due process concerns are implicated and can be addressed in a § 2255 motion. Van Thournout, 100 F.3d at 594; see United States v. Cook,406 F.3d 485, 487 (7th Cir. 2005) (even a plea agreement containing a waiver of the right to appeal and to file a petition under § 2255 can be collaterally attacked in a limited number of circumstances, including challenges based upon contractual grounds such as mutual mistake or breach); see Frownfelter, 626 F.3d at 555; United States v. Lewis, 138 F.3d 840, 842 (10th Cir. 1998) (stating "the broad and ...


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