United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
L. Hovland, Chief Judge United States District Court
Defendant is serving a 120-month sentence for conspiracy to
distribute a controlled substance. On June 20, 2016, the
Defendant filed a “Motion to Vacate under 28 U.S.C.
§ 2255 (Johnson Claim.).” See
Docket No. 99. The Defendant's motion is based on the
United States Supreme Court's holding in Johnson v.
United States, 135 S.Ct. 2551 (2015). The Federal's
Public Defender's Office filed a “Notice of Intent
Not to Supplement Pro Se Filing” on July 12, 2017.
See Docket No. 101. After an initial review of the
motion, the Court ordered the Government to file a response.
On July 20, 2016, the Government filed a response in
opposition to the motion. See Docket No. 103. For
the reasons set forth below, the motion is denied.
March 4, 2015, Jimenez and a co-defendant were named in a
nine-count indictment involving a conspiracy and the
distribution of methamphetamine, cocaine, heroin, and
marijuana. See Docket No. 1. On August 4, 2015,
Jimenez pled guilty to the conspiracy count. See
Docket No. 52. The other eight counts were dismissed. The
offense of conviction carried a maximum penalty of life in
prison and a statutory mandatory minimum of 120 months in
prison. See Docket No. 48.
Presentence Investigation Report (“PSR”)
calculated a total offense level 31, including 2 points for
possession of firearm in connection with the drug conspiracy,
and criminal history category I, resulting in an advisory
Sentencing Guideline range of 120-135 months. See
Docket No. 87, ¶ 87. The Court adopted the PSR without
change and sentenced Jimenez to 120-months imprisonment on
February 5, 2016. See Docket Nos. 84-87. No appeal
20, 2016, Jimenez filed a Section 2255 motion citing the
recent opinion of the United States Supreme Court in
Johnson v. United States, 135 S.Ct. 2551 (2015), as
the basis for the motion. Jimenez seeks review of his
sentence, apparently contending he should not have received a
2 point enhancement for possession of a firearm in connection
with the drug conspiracy.
STANDARD OF REVIEW
U.S.C. § 2255 provides a federal prisoner an avenue for
relief if his ‘sentence was imposed in violation of the
Constitution or laws of the United States, or . . . was in
excess of the maximum authorized by law.'” King
v. United States, 595 F.3d 844, 852 (8th Cir. 2010)
(quoting 28 U.S.C. § 2255(a)). This requires a showing
of either constitutional or jurisdictional error, or a
“fundamental defect” resulting in a
“complete miscarriage of justice.” Davis v.
United States, 417 U.S. 333, 346 (1974); Hill v.
United States, 368 U.S. 424, 428 (1962). A 28 U.S.C.
§ 2255 motion is not a substitute for a direct appeal
and is not the proper way to complain about simple trial
errors. Anderson v. United States, 25 F.3d 704, 706
(8th Cir. 1994). A 28 U.S.C. § 2255 movant “must
clear a significantly higher hurdle than would exist on
direct appeal.” United States v. Frady, 456
U.S. 152, 166 (1982). Section 2255 is “intended to
afford federal prisoners a remedy identical in scope to
federal habeas corpus.” Davis, 417 U.S. at
case involving an Armed Career Criminal Act
(“ACCA”) conviction based on Johnson,
“the movant carries the burden of showing that the
Government did not prove by a preponderance of the evidence
that his conviction fell under the ACCA.” Redd v.
United States, No. 4:16-CV-1665, 2017 WL 633850, at *2
(E.D. Mo. Feb. 16, 2017) (quoting Hardman v. United
States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016)). The
movant need not show he was sentenced under the residual
clause to maintain a Section 2255 claim under
Johnson. United States v. Winston, 850 F.3d
677, 682 (4th Cir. 2017) (noting sentencing judges are not
required to specify under which clause of 18 U.S.C. §
924(e)(2)(B) an offense qualified as a violent felony). A
movant may rely on the new rule of constitutional law
announced in Johnson if his sentence may
have been predicated on the now void residual clause.
Section 2255 motion, the determination of whether a prior
conviction qualifies as a predicate violent felony under the
ACCA is subject to de novo review. Winston,
850 F.3d at 683; In re Chance, 831 F.3d 1335,
1338-39 (11th Cir. 2016). The court's review is not
constrained to the law as it existed when the movant was
sentenced, but should be made with the assistance of binding
intervening precedent which clarifies the law. In re
Chance, 831 F.3d at 1340; Winston, 850 F.3d at
683-84 (applying intervening case law); Redd, No.
4:16-CV-1665, 2017 WL 633850, at *4 n. 3. (noting decisions
which clarify or apply existing law or a settled rule apply
on collateral review). The burden remains on the movant to
show that his sentence, in the wake of Johnson, is
no longer authorized by the ACCA. In re Chance, 831
F.3d at 1341.
Johnson, the United States Supreme Court held the
residual clause of the ACCA was vague, and the application of
the residual clause violates the Constitution's guarantee
of due process. Johnson, 135 S.Ct. at 2563. The ACCA
defines “violent felony” as follows:
term “violent felony” means any crime punishable
by imprisonment for a term exceeding one year, or any act of
juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the ...