United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the motion to vacate under 28
U.S.C. § 2255 (filing 47) filed by the
defendant, Quincy R. Haynes. 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.
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.
defendant was convicted, pursuant to a guilty plea, of being
a felon in possession of ammunition, in violation of 18
U.S.C. § 922. Filing 39 at 1. The
presentence report found that pursuant to U.S.S.G. §
2K2.1(a)(4)(A), the defendant's base offense level was 20
because he had a prior conviction for a "crime of
violence" as defined by U.S.S.G. § 4B1.2(a).
Filing 35 at 6-7; see § 2K2.1 cmt.
n.1. Specifically, the defendant had a prior Nebraska
conviction for burglary. Filing 35 at 7.
Accordingly, the presentence report assessed the
defendant's offense level at 20, which (after a reduction
for acceptance of responsibility) combined with a criminal
history category of VI for a Guidelines imprisonment range of
51 to 63 months' imprisonment. Filing 35 at 8,
22. The Court accepted that Guidelines range, but varied
downward on the defendant's motion and imposed a
Guidelines sentence of 51 months' imprisonment.
Filing 39 at 2; filing 40 at 1.
the judgment became final, 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
defendant's argument is twofold. First, the defendant
contends that Nebraska's crime of burglary 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) was invalidated by
Johnson, and that as a result, he is entitled to
Court agrees with the defendant that Nebraska burglary 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.
Burglary as "Crime of Violence"
"crime of violence, " as defined by § 4B1.2(a)
at the time of the defendant's sentencing,  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
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 § 924(e)(2)(B) that the Supreme Court struck
down in Johnson. So, the initial question is whether
burglary, under Nebraska law, is a "crime of
violence" under the elements clause of §
4B1.2(a)(1), whether it is an enumerated offense under ...