Glenn Allen Smith v. USA

Filing 9

OPINION MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Glenn Allen Smith. IT IS HEREBY ORDERED that this action is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Henry Edward Autrey on 4/3/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GLENN ALLEN SMITH,

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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) Case No. 1:16cv36HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion to Vacate, Set Aside or
Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255, wherein he asserts
Johnson v. United States, 135 S. Ct. 2551 (2015) is applicable. The United States
of America has responded to the motion. For the reasons set forth below the
Motion will be denied.
Facts and Background
On January 9, 2007, Petitioner entered a plea of guilty to the offense of Possession
Of Methamphetamine With the Intent to Distribute in violation of 21 U.S.C. § 841(a)(1).
A Presentence Investigation Report was prepared and provided to the court. Petitioner
appeared on April 10, 2007 for sentencing. Petitioner was found to be a career offender
and was sentenced to a within-Guidelines term of imprisonment of 188 months.

The Presentence Investigation Report found Petitioner to be a career offender under
U.S.S.G. § 4B1.1(a), resulting in a Total Offense Level of 29. The convictions that were
classified as career offender predicates were: (1) a crime of violence conviction for First
Degree Burglary; (2) a controlled substance offense of Manufacture of a Controlled
Substance. The Criminal History Category was VI since he was classified as a career
offender and the resulting sentencing range was 151 to 188 months.
Petitioner’s Claim
Petitioner claims that he is entitled to relief under the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). His suggestion is that Johnson should
be applied retroactively to his case to reduce his sentence.
Discussion
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that
the residual clause in the definition of a “violent felony” in the Armed Career Criminal
Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally vague. The
Supreme Court has since determined that Johnson announced a new substantive rule of
constitutional law that applies retroactively on collateral review in cases involving
ACCA-enhanced sentences. United States v. Welch, 136 S. Ct. 1257 (2016). However,
the Court’s holding in Welch that Johnson applies retroactively in ACCA cases on
collateral review does not govern the separate question of whether Johnson applies
retroactively to claims based on the Sentencing Guidelines. Unlike the ACCA, a
Guidelines classification does not “prescribe[] punishment.” Welch, 136 S. Ct. at 1268.
A Career Offender is determined as follows:

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(a) A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a).
A “crime of violence” is defined in the Guidelines as follows:
(a) the term “crime of violence” means any offense under federal
or state law, punishable by imprisonment for a term exceeding one 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 another.
U.S.S.G. § 4B1.2(a) (emphasis furnished).
Here, the Sentencing Guidelines provide that one of the enumerated crimes that
may be used as a Career Offender predicate conviction is “burglary of a dwelling.” The
crux of Petitioner’s offense conduct regarding his First Degree Burglary conviction was
that the Petitioner “burglarized a home and stole property.” P.S.R. ¶ 28. Clearly this is an
“enumerated” crime. It is specifically set out in paragraph 2 of U.S.S.G. § 4B1.2(a).
In Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016), the defendant applied
for leave to file a successive petition based upon Johnson, seeking to extend Johnson and
Welch by urging that the residual clause of the career offender provisions in the
sentencing guidelines was unconstitutionally vague and that this extension should be
applied retroactively to cases on collateral review. Id. The motion was denied and the

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Court concluded that “Donnell’s successive motion seeks to assert a new right that has
not been recognized by the Supreme Court or made retroactive on collateral review.” Id.
Donnell forecloses the issue raised here by Petitioner, holding that defendants are
not entitled to apply Johnson retroactively to cases on collateral review. In refusing to
allow Donnell permission to file his successive 2255 Petition, the Court noted that “[f]or
Donnell’s successive motion to succeed, therefore, the post-conviction court must
announce a second new rule that extends Johnson to the sentencing guidelines.” Id. at *
1. The Donnell Court declined to find that this “second new rule” exists and denied
Donnell permission to file his successive § 2255 Petition.
Considering the Court’s holding in Donnell, Petitioner, may not apply the holding
of Johnson in a retroactive fashion to attack his career offender sentence on collateral
review. He has not shown that there is a new rule of constitutional law, made
retroactively applicable to cases on collateral review.

Conclusion
Based upon the foregoing analysis, Petitioner has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.

Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
Dated this 3rd day of April, 2017.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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