United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court upon initial review of the pro
se motion to vacate under 28 U.S.C. § 2255 (filing
43) filed by the defendant, Marlon Rupert. The motion was
timely filed less than 1 year after the defendant's
conviction became final. See § 2255(f). The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
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 guilty plea of one count
of conspiracy to distribute 500 grams or more of a mixture
containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 846. The statutory imprisonment
range was not less than 10 years nor more than life
imprisonment. See 21 U.S.C. §
841(b)(1)(A)(viii). The presentence report found that the
defendant was a career offender under U.S.S.G. § 4B1.1,
based in part on a Nebraska conviction for robbery. Filing 39
at 8, 11. 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. Filing 39 at 8, 17. The Court accepted
that range, filing 42 at 1, and sentenced the defendant to
262 months' imprisonment, filing 41 at 2.
defendant presents two claims. First, he argues that he is
entitled to resentencing pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). Second, he argues that he
received ineffective assistance of counsel based on his
attorney's failure to challenge his career offender
designation pursuant to Johnson. Neither argument
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.
The defendant's argument is based on the presence of the
same language in § 4B1.2(a).
are several problems with that argument. The most obvious is
the Supreme Court's subsequent holding in Beckles v.
United States that the Guidelines are not subject to a
vagueness challenge under the Due Process Clause, and
therefore that the residual clause in § 4B1.2(a)(2) is
not void for vagueness. 137 S.Ct. 886, 892 (2017).
Beckles squarely forecloses the defendant's
that, the residual clause of § 4B1.2(a)(2) is not even
implicated in this case. A crime of violence includes an
offense punishable by a term of imprisonment for a term
exceeding 1 year that "has as an element the use,
attempted use, or threatened use of physical force against
the person of another." § 4B1.2(a)(1). And under
Nebraska law, "[a] person commits robbery if, with the
intent to steal, he forcibly and by violence, or by putting
in fear, takes from the person of another any money or
personal property of any value whatever." Neb. Rev.
Stat. § 28-324(1). That is a "crime of
violence" under the "force clause" of §
4B1.2(a)(1). United States v. Hicks, 374 F.App'x
673, 673 (8th Cir. 2010).
the Court finds that the defendant waived his right to raise
this argument on postconviction relief. As discussed above,
the defendant's plea agreement contained a waiver of
"any and all rights to contest" his conviction and
sentence, "including any proceedings under 28 U.S.C.
§ 2255, " absent specific exceptions that are not
present here. Filing 25 at 5-6. And the defendant does not
contend that his entry into the plea agreement was not
knowing and voluntary.
is no question that a knowing and voluntary waiver of a
defendant's right to direct appeal or collateral attack
is generally enforceable. DeRoo v. United States,
223 F.3d 919, 923 (8th Cir. 2000). Such a waiver is
enforceable when the claim raised falls within the scope of
the waiver, the defendant knowingly and voluntarily entered
into the plea agreement and waiver, and enforcement of the