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United States v. Cramer

United States District Court, D. Nebraska

October 19, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TROY CRAMER, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This matter is before the Court on the motion to vacate under 28 U.S.C. § 2255 (filing 66) filed by the defendant, Troy Cramer. The motion was timely filed less than 1 year after the Supreme Court initially recognized the right that the defendant's motion asserts. See, § 2255(f); Johnson v. United States, 135 S.Ct. 2551 (2015).

         Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court "must review the answer, any transcripts and records of prior proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted." A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.

         BACKGROUND

         The defendant was convicted, pursuant to a guilty plea, of conspiring to distribute 500 or more grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. Filing 36 at 1. In his plea agreement, the defendant "knowingly and expressly" waived "any and all rights to contest" his conviction and sentence, "including any proceedings under 28 U.S.C. § 2255, " except for the right to challenge his conviction and sentence "should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that the charge to which the defendant is agreeing to plead guilty fails to state a crime" and the right to "seek post conviction relief based on ineffective assistance of counsel, or prosecutorial misconduct, " if the grounds for that claim could not have been known by the defendant at the time of his plea. Filing 25 at 6-7.

         The presentence report found that the defendant was a career offender under U.S.S.G. § 4B1.1. Filing 38 at 8. Specifically, the defendant had prior convictions for a controlled substance offense (a previous federal conviction for conspiracy to distribute methamphetamine) and a "crime of violence" as defined by U.S.S.G. § 4B1.2(a) (a Nebraska state conviction for terroristic threats). Filing 38 at 8. Accordingly, the presentence report assessed the defendant's offense level at 37, which (after a reduction for acceptance of responsibility) combined with a criminal history category of VI for a Guidelines imprisonment range of 262 to 327 months' imprisonment. Filing 38 at 8, 17. The Court accepted that Guidelines range, filing 37 at 1, and imposed a within-Guidelines sentence of 262 months' imprisonment, filing 36 at 2.[1]

         Shortly after the Court entered its amended judgment, the Supreme Court held in Johnson that the definition of "crime of violence" contained in 18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague. 135 S.Ct. at 2563. Based on the presence of the same language in § 4B1.2(a), the defendant filed the instant § 2255 motion. Filing 66.

         DISCUSSION

         The defendant's argument is twofold. First, the defendant contends that Nebraska terroristic threats is only a "crime of violence" within the residual clause of § 4B1.2(a)(2)-that is, it is not a "crime of violence" within the meaning of the "elements clause" of § 4B1.2(a)(1), or an offense enumerated in § 4B1.2(a)(2). Second, the defendant contends that the residual clause of § 4B1.2(a)(2) is invalidated by Johnson, and that as a result, he is entitled to resentencing.

         The Court agrees with the defendant that Nebraska terroristic threats can only be considered a "crime of violence" pursuant to the residual clause of § 4B1.2(a)(2). However, the Court disagrees with the defendant with respect to whether the residual clause is unconstitutionally vague: under binding Eighth Circuit precedent, the vagueness of a Sentencing Guideline is not a violation of a defendant's right to due process. And, the Court finds, the defendant's collateral attack is precluded by the waiver provision of his plea agreement. Accordingly, the Court will deny the defendant's § 2255 motion.

         Terroristic Threats as "Crime of Violence" A "crime of violence, " as defined by § 4B1.2(a) at the time of the defendant's sentencing, [2] was a federal or state offense punishable by a term of imprisonment exceeding 1 year, that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

So, § 4B1.2(a) essentially comprised three categories of "crime of violence": the "elements clause" of § 4B1.2(a)(1), the "enumerated offenses" specifically identified in § 4B1.2(a)(2), and the "residual clause" of crimes involving "conduct that presents a serious potential risk of physical injury to another." The language of § 4B1.2(a)(2)'s residual clause was identical to the language of § ...


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