Bates v. United States of America

Filing 13

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Movant Willie Brian Bates, IIIs Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (ECF No. 1), is DENIED, and Batess claims are DISMISSED WITH PREJUDICE. A separate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that, because Bates cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c). Signed by District Judge Jean C. Hamilton on 7/13/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIE BRIAN BATES, III,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:12CV2005 (JCH)

MEMORANDUM AND ORDER
This matter is before the Court on Movant Willie Brian Bates, III’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.
(Motion, ECF No. 1). The Motion has been fully briefed and is ready for disposition.
On March 8, 2010, Bates pled guilty to one count of conspiracy to distribute and possess
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. (Plea Agreement, Case No. 07-cr-759,
ECF No. 271, at 11-12). Bates was sentenced to a term of imprisonment of 262 months.
(Judgment, Case No. 07-cr-759, ECF No. 283, at 2). This sentence was based on a calculation
under the United States Sentencing Guidelines of a range of 262-327 months. United States v.
Bates, 418 Fed. App’x 569 (8th Cir. 2011) (unpublished) (per curiam). As part of its guidelines
calculation, the sentencing court concluded “Bates was a ‘career offender’ under U.S.S.G.
§ 4B1.1(a) because he had two prior felony convictions that qualified as ‘crimes of violence’
under U.S.S.G. § 4B1.2(a). One of the two prior convictions was for ‘knowingly burning or
exploding’ the property of another in violation of Mo. Rev. Stat. § 569.055.” Id. Bates’s only
contention on direct appeal was that the sentencing court erred in determining that “knowingly

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burning” under § 569.055 was a crime of violence for purposes of determining his sentencing
range. Id. The Eighth Circuit affirmed the sentencing court’s determination. Id. at 570.
In this Motion, Bates raises four ostensibly separate claims: (1) that his trial counsel was
ineffective in failing to object to the sentencing court’s “crime of violence” determination under
the sentencing guidelines; (2) that knowingly burning in Missouri is not a violent offense under
the sentencing guidelines; (3) that the sentencing court “violated clearly established law
regarding the procedure used to establish the prior conviction was a violent offense[;]” and (4)
that his appellate counsel was ineffective for failing to raise these grounds on direct appeal.
(Motion at 5-6). As the Government points out, these claims all turn on the same question:
whether Bates’s “1999 conviction for Knowingly Burning or Exploding in violation of Missouri
Revised Statute § 569.055 [constitutes] a ‘violent offense’ for purposes of the ‘career offender’
provision” of the U.S.S.G. (Gov’t Response, ECF No. 3, at 5).
The Eighth Circuit already answered this question in the affirmative on direct appeal.
Bates, 418 Fed. App’x 569. The opinion in the direct appeal relied primarily on United States v.
Whaley, 552 F.3d 904 (8th Cir. 2009). In Whaley, a unanimous Eighth Circuit panel examined
whether § 569.055 is a “violent felony” under 18 U.S.C. § 924(e), the Armed Career Criminal
Act. Id. at 905. This inquiry required the Whaley court to examine the statutory definition of
“violent felony,” which encompasses “‘any crime punishable by imprisonment for a term
exceeding one year’ that is ‘burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to another.’”
Id. (quoting § 924(e)(2)(B)). The Whaley court ultimately concluded that § 569.055 satisfies the
elements of generic arson, an offense specifically listed under § 924(e)(2)(B)(ii), and therefore
constitutes a violent felony under the ACCA.

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As the “crime of violence” inquiry under U.S.S.G. § 4B1.2(a) is identical to the “violent
felony” inquiry under § 924(e), United States v. Furqueron, 605 F.3d 612, 613-14 (8th Cir.
2010), the Whaley holding means there is no merit to Bates’s contention that his knowingly
burning conviction did not amount to a conviction for a crime of violence. The sentencing court
therefore did not err in calculating Bates’s sentencing range, and neither Bates’s trial counsel nor
appellate counsel could be considered ineffective for failing to contend that the sentencing court
erred.1

Accordingly,
IT IS HEREBY ORDERED that Movant Willie Brian Bates, III’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (ECF
No. 1), is DENIED, and Bates’s claims are DISMISSED WITH PREJUDICE. A separate
Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that, because Bates cannot make a substantial showing of
the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28
U.S.C. § 2253(c).

Dated this 13th day of July, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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In addition to his Motion, Bates filed a document that he named an “amended motion.” (ECF No. 12).
This document cannot be considered an amended motion. It is instead a reiteration of the same arguments
Bates sets forth in his Motion and Reply, although with new authority included. In any event, nothing
raised in this supplemental brief changes the outcome.

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