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United States v. Rupert

United States District Court, D. Nebraska

May 10, 2017



          John M. Gerrard United States District Judge.

         This 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.


         The 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.


         The 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 has merit.

         Johnson Vagueness

         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. The defendant's argument is based on the presence of the same language in § 4B1.2(a).

         There 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 claim.

         Beyond 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).

         Finally, 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.

         There 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 ...

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