KELLY v. USA
ENTRY - The Court now dismisses this action pursuant to Rule 4 because the holding in Beckles forecloses the petitioner's challenge to the enhancement of his sentence under the Sentencing Guidelines. Judgment consistent with this Entry s hall now issue and a copy of this Entry shall be docketed in No. 2:13-cr-16-JMS-CMM-4. The clerk is directed to update the docket sheet to reflect Kelley Kelly's registration number consistent with the distribution portion of this Entry (SEE ENTRY). Copy sent to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 6/7/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
UNITED STATES OF AMERICA,
Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence
and Denying a Certificate of Appealability
Petitioner Kelley Kelly filed a motion for relief pursuant to 28 U.S.C. § 2255 arguing that,
under Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence was unconstitutionally
enhanced and he must be resentenced. For the reasons stated below, the motion for relief is denied
and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings
for the United States District Courts.
Rule 4 provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the motion, and 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.” 28 U.S.C. § 2255 permits a federal court to grant relief “if it
finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to
On July 29, 2014, this Court sentenced Mr. Kelly to a term of 136 months 1 imprisonment
after finding that he was a career offender under United States Sentencing Guidelines § 4B1.1,
consistent with the Presentence Investigation Report. See Crim. Dkt. 398 at ¶ 20. The petitioner
now argues that because the residual clause of the ACCA is unconstitutionally vague, it follows
that the identical residual clause in the career offender provision of the Sentencing Guidelines is
also unconstitutionally vague. The United States Supreme Court, however, held otherwise in
Beckles v. United States, 137 S.Ct. 886 (2017), concluding that the Sentencing Guidelines are not
subject to vagueness challenges under the Due Process Clause. In other words, the holding of
Johnson does not apply to cases, like the petitioner’s, challenging guideline calculations. The
petitioner was given the opportunity to file a brief in support of his § 2255 motion after his counsel
withdrew, but failed to do so. The Court now dismisses this action pursuant to Rule 4 because the
holding in Beckles forecloses the petitioner’s challenge to the enhancement of his sentence under
the Sentencing Guidelines.
Judgment consistent with this Entry shall now issue and a copy of this Entry shall be
docketed in No. 2:13-cr-16-JMS-CMM-4.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that the petitioner has failed to show
that reasonable jurists would find “it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
denies a certificate of appealability.
In addition, the Court notes that the sentence imposed, 136 months, was substantially below the
262 to 327 months range that petitioner faced as a Career Offender. It is therefore questionable
whether petitioner was even sentenced as a Career Offender.
The clerk is directed to update the docket sheet to reflect Kelley Kelly’s registration
number consistent with the distribution portion of this Entry.
Reg. No. 11291-028
ELKTON FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 10
LISBON, OH 44432
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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