Mathis v. USA

Filing 12

MEMORANDUM AND ORDER re: 3 MOTION for Hearing filed by Petitioner Johnnie D. Mathis, 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Johnnie D. Mathis, 2 MOTION to Stay filed by Petitioner Johnnie D. Mathis. For the foregoing reasons, Mathis' petition is DENIED. IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Mathis has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 9/27/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOHNNIE D. MATHIS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 1:17CV00023 SNLJ

MEMORANDUM AND ORDER
Petitioner, Johnnie D. Mathis, has filed this motion for relief from his sentence,
asserting that he should be resentenced under the provisions of 18 U.S.C. § 3582(c)(2).
Mathis contends that his sentencing range has been lowered since his original sentencing
date by the Sentencing Commission. Mathis seeks to use Amendment 798 as the basis for
his claim, along with various citations from Johnson v. United States, 135 S.Ct. 2551
(2015) and Mathis v. United States, 136 S.Ct. 2243 (2016). Mathis believes that
Amendment 798 must be applied retroactively to his case and that he is entitled to relief
based on Johnson and Mathis. There is no merit to any of Mathis’ claims.
I. Underlying conviction and sentence:
Mathis was originally indicted on February 18, 2010, by a Grand Jury for the
Eastern District of Missouri for the charge of Felon in Possession of Ammunition in
violation of 18 U.S.C. § 922(g)(1). (DCD 1) Based on the law that existed at that time,
Mathis would be classified as an Armed Career Criminal if convicted of that charge,
since Mathis had three prior violent felony convictions. As noted below, defendants

convicted of being a Felon in Possession of Firearms and/or Ammunition and who are
Armed Career Criminals are subject to a minimum sentence of 15 years and a maximum
of life. After Mathis made his Initial Appearance, his attorney approached the
Government and requested that the Government consider amending the charge to
Possession of Stolen Ammunition in violation of 18 U.S.C. § 922(j).
The significance of that amended charge was that the classification of Armed
Career Criminal did not apply to § 922(j) convictions and the maximum punishment for
that violation was ten years. Mathis’ attorney agreed that Mathis would plead guilty to
that charge and accept a sentence of 120 months, the maximum punishment for that
charge. Everyone understood that this sentence would be a significant upward variance
for the conviction for Possession of Stolen Ammunition, but would be substantially less
than Mathis would receive as an Armed Career Criminal. The Government agreed to the
request and prepared a Superceding Information charging Mathis with the offense of
Possession of Stolen Ammunition. (DCD 49) On November 8, 2010, Mathis pled guilty
to the Superceding Information by appearance in this Court and with a written Plea
Agreement. (DCD 53) Mathis agreed to waive indictment by a grand jury on the charge
made in the Superceding Information. Mathis agreed to accept a sentence of 120 months
for that conviction. The Government agreed to dismiss Mathis’ charge of Felon in
Possession of Ammunition as charged in the Indictment at sentencing. The written plea
agreement set out the parties’ agreement as to the amended charge and the reasons for the
sentence:
The defendant understands that his Indictment charged the defendant with
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being a Felon in Possession of Ammunition as an Armed Career Criminal
pursuant to the sentencing provisions of 18 U.S.C. 924(e). Those provisions
required that the defendant be sentenced to a mandatory minimum sentence of
180 months. The parties have agreed that the defendant will instead plead
guilty to a lesser offense in an Information, that of Possession of Stolen
Ammunition. This new charge carries a maximum sentence of 120 months.
The parties have agreed that they will each recommend that this Court impose
a sentence of 120 months upon the defendant as a fair and reasonable
sentence, given the circumstances of the crime and this plea agreement. In
the event that the Sentencing Guidelines recommend a term of imprisonment
of less than 120 months, each party agrees that it will recommend that an
upward variance be granted to result in a sentence of 120 months. The parties
will further recommend that this sentence be run concurrent with any
undischarged term of state imprisonment and that the federal sentence will
begin on the date the federal sentence is imposed.
(DCD 53, pp. 2, 3)
A Presentence Investigation Report (“PSR”) was prepared to calculate Mathis’
Sentencing Guideline range. That report reflected that Mathis’ Total Offense Level was
21 and his Criminal History Category was VI. (PSR, pp. 3, 4, 8) Mathis’ Sentencing
Guideline range was calculated to be 77 to 96 months. (PSR, p. 14) The PSR also
disclosed the effect of the Plea Agreement, noting that Mathis was facing a minimum
sentence of 180 months if convicted of the original charge of Felon in Possession of
Ammunition, and that the maximum sentence for the current charge was 120 months.
(PSR, p. 14)
On February 8, 2011, Mathis appeared before this Court for sentencing. There
were no objections to the findings or calculations set out in the PSR. (Sent. Tr. p. 2) The
Court found Mathis’ Sentencing Guideline range to be 77 to 96 months imprisonment,
just as recommended by the PSR. (Sent. Tr. p. 2) The Government recommended a
sentence of 120 months as set out in the Plea Agreement. (Sent. Tr. p. 3) Mathis’ attorney
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recommended a sentence of 120 months. (Sent. Tr. p. 4) The Court then imposed the
sentence of 120 months for Mathis. (Sent. Tr. p. 6)
Mathis did not appeal his sentence.
II. Current claims:
Mathis makes several claims in his Motion, which he asserts is under the authority
of 18 U.S.C. § 3582(c)(2). Those claims, and the Government’s Responses, are set out as
follows:
A. “Mathis was subjected to an enhanced criminal history category as a Career
Offender pursuant to the U.S. Sentencing Guidelines §§ 4B1.2, 2K2.2.”
Mathis’ Motion, p. 1.
Mathis appears to believe that he was sentenced as either a career offender under
U.S.S. G. § 4B1.1 or an Armed Career Criminal pursuant to 18 U.S.C. § 924(e). Of
course, Mathis was not classified as either a career offender or Armed Career Criminal.
His PSR does not contain any reference to any offense levels being assigned to Mathis as
either a career offender or Armed Career Criminal. Mathis’ assertion that he was
subjected to an enhanced criminal history category as a career offender is simply
mistaken. A cursory review of Mathis’ PSR reveals that Mathis’ Sentencing Guideline
range was calculated under U.S.S.G. § 2K2.1, not the career offender guidelines under
§4B1.
Furthermore, no matter what the offense levels, criminal history category or
Guideline range was, Mathis agreed to a sentence of 120 months. Mathis specifically
agreed to an upward variance to a final sentence of 120 months, which is what this Court

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imposed. Mathis’ sentence is a direct result of his bargain and a sentence that Mathis
himself requested.
As a factual matter, Mathis’ assertion that he was subjected to an enhanced
criminal history category as a career offender is simply incorrect.
B. “The defendant falls within the exception in § 3582(c)(2)’s “ . . . who has
been sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission pursuant to 28
U.S.C.§ 994(o) . . .” Mathis’ Motion, p. 1.
In this claim, Mathis contends that he is eligible for a reduction in his sentence
pursuant to § 3582(c)(2). Mathis’ original offense levels were calculated based on his
having convictions for two crimes of violence. If Amendment 798 were retroactively
applied to his sentence, Mathis’ Guideline levels would be reduced and his Guideline
range would be reduced. Mathis contends that:
[e]ffective August 1, 2016, the Sentencing Commission issued Amendment 798
amending the definition of crime of violence in U.S. Sentencing Guideline
(USSG) Manual app. C. amend 798 (Supp. Aug. 1, 2016). Section 4B1.1,
however, no longer includes the residual clause and contains a revised list of
enumerated offenses.
Amendment 798 now requires this Court to revisit those four previous Missouri
convictions of burglary, tampering, assault and stealing because these are no
longer qualify predicate offenses to continue his sentence as a career offender and
revise his upward departure as well for the same reason.
Mathis’ Motion, pp. 1, 2.
Amendment 798 was issued by the United States Sentencing Commission altering
the wording of part of the definition of a crime of violence in U.S.S.G. § 4B1.2(a).
Among other things, that amendment removed a conviction for burglary of a dwelling
and the residual clause from being classified as crimes of violence. The effective date of
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this amendment was August 1, 2016. Mathis contends that if this amendment were
retroactively applied to his prior convictions, his offense levels would be less, thereby
reducing his Guideline range.
Mathis’ ultimate contention fails, on two significant grounds. First, Mathis’ plea
agreement contains his specific agreement that he would receive a sentence of 120
months and that he would accept an upward variance from whatever Guideline range was
calculated for his crime. No matter what his recalculated Guideline range would be, his
agreement to receive 120 months imprisonment would remain the same.
Secondly, Amendment 798 may not be applied retroactively. The Guidelines
contain a reference as to which Guideline Amendments may be applied retroactively in
U.S.S.G. § 1B1.10(d). Belton v. United States, 71 Fed.Appx. 582, 583 (7th Cir. 2003)
(“Section 1B1.10 of the guidelines identifies the amendments that the Sentencing
Commission has authorized courts to apply retroactively . . .”) U.S.S.G. § 1B1.10 does
not permit the retroactive application of Amendment 798, since Amendment 798 is not
listed in that Guidelines section as a retroactively applied Guideline change.
The sole circuit court of appeals that has considered whether Amendment 798 may
be applied retroactively to a case on collateral review has concluded that it may not be so
applied.1 See United States v. Strevig, 663 Fed.Appx. 908, 912(11th Cir. 2016) (“The
Sentencing Commission, however, has not made Amendment 798 retroactive to
individuals sentenced prior to the effective date of the Amendment.”); United States v.
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This Court is aware of an appellate case dealing with the application of Amendment 798 to a case on direct appeal
in United States v. Kennedy, 2017 WL 1078552 (6th Cir. 2017). However, that case did not involve the retroactive
application of Amendment 798 to a case on collateral review. The Government agrees that Amendment 798 would
apply to a case on direct appeal, but not to a case on collateral review like Mathis’ sentence.

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Johnson, 665 Fed.Appx. 788, 792-93 (11th Cir. 2016) (“As a substantive change to the
Guidelines, Amendment 798 does not apply retroactively to his sentence.”). District court
cases that have considered this issue uniformly reject the contention made by Mathis that
Amendment 798 may be applied retroactively to cases on collateral review. See Ellis v.
United States, 2017 WL 972092, FN 3 (D. Maine, March 10, 2017) (“However, the
amendment [# 798] does not apply to Petitioner’s case because it was not in effect on the
date of his sentencing.”); Lebron v. United States, 2017WL 2116277, FN 1 (May 15,
2017) (“Amendment 798 was not made retroactive, see U.S.S.G. § 1B1.10(d) . . . and it is
therefore not applicable to Lebron”); McKenzie v. United States, 2017 WL 930146, FN 4
(S.D. Georgia, January 11, 2017) (“Amendment 798 does not apply retroactively to
[McKenzie’s] sentence.”); United States v. Smith, 2017 WL 1731701, FN 1 (E.D.
Virginia, May 2, 2017) (“In any event, Amendment 798 is not retroactively applicable.”);
Everett v. United States, 2017 WL 2116282, FN (E.D. Wisconsin, May 15, 2017)
(“Amendment 798 was not made retroactive, see U.S.S.G. § 1B1.10(d) (listing
amendments to be applied retroactively pursuant to 18 U.S.C. § 3582(c)(2)”); Shuck v.
United States, 2017 WL 465682 (S.D. Georgia, January 31, 2017); United States v.
Hamm, 2017 WL 1536438, FN 2 (E.D. Virginia, April 27, 2017); and Hayes v. United
States, 2017 WL 976624, FN 2 (E.D. Virginia, March 13, 2017).
Not one single district or appellate court has agreed with Mathis’ contention that
Amendment 798 is retroactively applicable to cases on collateral review. Mathis may not
avail himself of the new definition of a crime of violence in this action.

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Mathis asserts that “Amendment 798 renders the defendant’s sentence illegal, his
sentence is now a fundamental defect and results in a manifest miscarriage of justice.”
But since he can’t apply Amendment 798 retroactively to his sentence, Mathis cannot
demonstrate that his Guideline range of imprisonment was improperly calculated.
Mathis’ basic claim that he is entitled to a review of his sentence under 18 U.S.C.
§ 3582(c)(2) is fundamentally flawed. That statute states, in relevant part:
(c) Modification of an imposed term of imprisonment.—
The court may not modify a term of imprisonment once it has been imposed
except that –
(2) in the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the
defendant or the Director of the Bureau of Prisons, or on its own motion, the
court may reduce the term of imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2). (Emphasis furnished)
Mathis’ theory fails because his chosen amendment is not to be applied
retroactively by the decision of the Sentencing Commission. The Commission decided
not to include Amendment 798 to the list of amendments that may be applied
retroactively to cases on collateral review. In order for Mathis to obtain relief under §
3582(c)(2), he would have to show that his relief would not violate the express directions
of the Sentencing Commission. Mathis cannot do so since his amendment is not applied
retroactively on collateral review. The Sentencing Commission did not lower the
sentencing range for Mathis’ term of imprisonment because it did not make that
amendment retroactively applicable.
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Mathis may not use Amendment 798 and may not obtain review of his sentence
under 18 U.S.C. § 3582(c)(2).
C. Holding of Johnson:
Mathis contends that the holding of Johnson should be applied to his case to
require an adjustment in his sentence. He claims that Johnson lowers his sentencing
range. Mathis’ Motion, p. 2.
In this contention, Mathis re-argues his position that Amendment 798 must be
applied retroactively to his sentence. No matter how many times Mathis makes this
argument, it is always incorrect, as noted above.
D. Beckles holding:
In this argument, Mathis predicts that the pending decision in Beckles v. United
States, 137 S.Ct. 886 (2017), will require the invalidation of the residual clause for the
definition of a crime of violence. He stated the question as “whether Johnson’s
constitutional holding applies to the residual clause contained in the advisory guidelines
in USSG § 4B1.2(a)(2).” Mathis badly miscalculated what the eventual holding of
Beckles would be. Beckles held that the Sentencing Guidelines are not subject to a due
process vagueness challenge. Id. at 897. That means that a defendant, like Mathis here,
may not contend that his residual clause crimes of violence were misclassified at
sentencing based on an argument that the residual clause of the definition of a crime of
violence is unconstitutionally vague. Beckles settled once and for all that sentences
determined by using the residual clause are constitutional and may not be set aside on
that basis. Mathis’ contention on this issue was firmly rejected by Beckles.
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E. Downward departure under Amendment 798.
In this argument, Mathis makes a convoluted argument that Amendment 798
contains a provision adding a downward departure in cases involving U.S.S.G. § 4B1.1.
Mathis contends that Amendment 798 somehow requires that this Court re-determine
whether the underlying convictions were misdemeanors or felonies. Of course, Mathis
does not cite any language from any Guideline section, or statute, or case that supports
his theory. He simply asserts that Amendment 798 requires this result. Actually, since
Amendment 798 is not to be applied retroactively to cases on collateral review, like
Mathis’, his point may not be considered by this Court.
As to the merits of his contention, Mathis does not cite any law, case or other
authority that any of his prior convictions were mis-labeled as felony convictions. He
cites a Missouri Supreme Court case that required stealing charges under Missouri
statutes to be classified as misdemeanors. Significantly, Mathis has taken no action to
actually change the status of his stealing conviction. But even if Mathis could by some
process amend his former felony stealing conviction from a felony to a misdemeanor,
Mathis cannot get around his specific plea agreement, which was for a sentence of 120
months. No matter what his guideline change would be, it would simply amend the
amount of the upward variance required to obtain a sentence of 120 months. Mathis got
the exact sentence that he requested. His sentence was not dependent on any guideline
range. There was no error committed by the district court.
F. Waiver.

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Mathis claims that his plea agreement waiver should not be enforced. Mathis’ plea
agreement contained a waiver of his right to file a habeas petition under 28 U.S.C. §
2255. This Court agrees that the current petition is a § 3582(c)(2) petition, and is not a
habeas petition. Further, the Government has stated it will not seek to enforce any waiver
of his right to file this motion. However, as argued above, Mathis completely fails on the
merits of his claims.
G. Effect of 28 U.S.C. § 994(o):
In point 6 of his Motion, Mathis argues that, even if the Sentencing Commission
did not make Amendment 798 retroactively applicable to cases on collateral review, the
language of 18 U.S.C. § 3582(c)(2) requires the retroactive application of Amendment
798. In coming to that conclusion, Mathis makes the following statement:
On the contrary, the plain language of 18 U.S.C. § 3582(c)(2) does not even
mention any Sentencing Commission’s amendments must be retroactive and
the only requirement is “(2) in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing range that has
been subsequently been lowered by the Sentencing Commission pursuant
to 28 U.S.C. § 994(o).” Id.
Thus, the only requirement Mathis has to meet is with the plain language
of § 3582(c)(2) that his sentence is “. . . based on a sentencing range that has
subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. § 994(o). Freeman v. United States, 564 U.S. 5[2]2 (2011) and
United States v. Browne, 698 F.3d 1042 (8th Cir. 2012), do not require that
a defendant seeking his sentence to be modified or lowered pursuant to a
Sentencing Commission’s amendment does not have to be retroactive.
Mathis’ Motion, pp. 8, 9.
Mathis comes to this conclusion by ignoring cases and language opposed to his
position. His citation of Freeman is just such an example.
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Freeman had entered into a binding plea agreement with the Government under
Rule 11(c)(1)(C) for his drug distribution crimes. The parties agreed that the court should
impose a sentence of 106 months imprisonment or allow either party to withdraw from
the agreement. The district court approved the plea agreement and imposed the agreedupon sentence. Three years after the sentence was imposed, the Sentencing Commission
issued a retroactive amendment to the Sentencing Guidelines, reducing the offense levels
for certain cocaine offenses. Freeman filed a § 3582(c)(2) motion, seeking to utilize the
new guideline level for the court to consider in imposing his sentence. Freeman, 564 U.S.
522, 525-26 (2011). Because the plea agreement referenced Freeman’s Guideline range
of punishment to set the amount of the agreed-upon sentence, the Supreme Court agreed
with Freeman, requiring the district court to conduct another sentencing hearing based on
the amendment that the Sentencing Commission itself made retroactive. In making its
decision, the Supreme Court noted that “[r]etroactive reductions to sentencing ranges are
infrequent, so the problem will not arise often.” Id. at 531. This case turned on two
significant facts, each of which is a deviation from Mathis’ facts. The first is that
Freeman entered into a binding plea agreement that referenced a specific Guideline range
of punishment applicable to his sentence. Mathis’ plea agreement did not. The second
difference is that Freeman was seeking a resentencing based on an amendment that was
specifically made retroactive by the Sentencing Commission. Mathis’ chosen amendment
was not made retroactively applicable on collateral review.
Mathis seeks to use a decision permitting resentencing for a retroactively applied
Sentencing Commission amendment for a binding plea. Mathis has neither situation. The
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amendment he seeks to utilize was specifically not made retroactive by the Sentencing
Commission and his plea agreement was not a binding plea agreement under Rule
11(c)(1)(C). Mathis’ plea agreement contained only a joint recommendation of the
parties under Rule 11(c)(1)(A). The Court was free to accept or reject the parties’
recommendations without allowing either side to withdraw from the agreement if the
Court elected not to follow those recommendations. The holding of Freeman does not
support Mathis’ claims; in fact, that holding specifically noted the rarity of applying
Sentencing Commission amendments in a retroactive fashion.
Mathis’ reliance on Browne is even more misguided. The facts of Browne involve
a defendant who pled guilty to a cocaine crime, again pursuant to a binding plea
agreement. In this case, the parties stipulated that the sentence was not based on a
Guideline range, but was “an appropriate sentence.” Browne, 698 F.3d at 1043. Browne
was not allowed to obtain a sentencing reduction based on an amendment to the
applicable drug quantity guideline that was made retroactively applicable by the
Sentencing Commission because his sentence was not based upon the old offense levels.
Mathis fails to recognize that the holding of Browne rejected Browne’s claim that his
sentence under a binding plea agreement should be vacated based on a new offense level
computation in those cases where the agreed upon sentence was not dependent on a
specific Guideline range. Furthermore, Mathis fails to recognize that the Guideline range
in Browne was affected by an amendment made retroactive to cases on collateral review,
which is not the facts of Mathis’ case. Finally, Mathis fails to recognize that his plea
agreement did not rely on a specific Sentencing Guideline range, but called for a 120
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month sentence no matter what the applicable Guideline range turned out to be. The
holding of Freeman supports the Government’s argument, not Mathis’.
Mathis misinterprets the plain language of § 3582(c)(2). That statute permits the
resentencing of a defendant whose “sentencing range . . . has been subsequently lowered
by the Sentencing Commission . . .” In his case, Mathis’ sentencing range has not been
lowered by the Sentencing Commission because the Sentencing Commission chose not to
make Amendment 798 retroactively applicable. His Guideline range of imprisonment has
not been altered by the Sentencing Commission. § 3582(c)(2) does not permit Mathis’
claim or to allow him to be resentenced.
H. Whether Amendment 798 was made retroactively applicable by Johnson
and/or Beckles.
In this point, Mathis seems to contend that the holding of Johnson, which
invalidated the residual clause of 18 U.S.C. § 924(e), and the holding of Beckles, required
that the residual clause of U.S.S.G. § 4B1.2(a) to be stricken from the Guidelines as to
previously sentenced defendants. Mathis cites no case, no statute, and no authority for
that proposition, which is clearly incorrect. The holding of Beckles specifically rejected
Mathis’ claim and found that the residual clause definition of a crime of violence is not
subject to due process challenges for vagueness. Mathis’ argument is simply incorrect
and against prevailing legal authority.
CONCLUSION
For the foregoing reasons, Mathis’ petition is DENIED.

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IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Mathis has not made a substantial showing of the denial of a
federal constitutional right.
SO ORDERED this 27th day of September, 2017.

_________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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