United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
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
to a binding plea agreement under Fed. R. Crim. P.
11(c)(1)(C),  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.
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.
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
has served just over 40 months.
§ 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).
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).
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. 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
court must first determine the effect of the parties'
binding plea agreement on the motion. 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.
Section 2255 Standards
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).
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).
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). 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.
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).
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 ...