Shipman v. United States of America

Filing 2

MEMORANDUM AND ORDER re: 1 ORDERED that movant's motion to vacate, correct or set aside her sentence brought pursuant to 28 U.S.C. 2255 is DENIED and DISMISSED as SUCCESSIVE. FURTHER ORDERED that the Court will not grant movant a certificate of appealability.. Signed by District Judge Henry Edward Autrey on 5/7/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KANDIS KARLOTTA SHIPMAN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:14CV773 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on movant=s motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. ' 2255. The motion is a Asecond or successive motion@ within the meaning
of 28 U.S.C. '' 2244 & 2255 but has not been certified by the United States Court of Appeals for
the Eighth Circuit as required by the AEDPA. As a result, the motion will be denied and
dismissed.
Background
On June 7, 2007, a grand jury returned an indictment against movant. See United States v.
Shipman, 4:07CR351 HEA (E.D. Mo. 2008). Movant was charged with conspiracy to distribute
and possess with intent to distribute in excess of 50 grams of actual methamphetamine. Movant
entered into a written plea agreement. Specifically, the plea agreement provided that movant
agreed to waive her right to appeal all sentencing issues, including but not limited to criminal
history category and career offender status. Movant also acknowledged in the plea agreement
that by virtue of her criminal history, she qualified as a “career offender” under Section 4B1.1 of
the United States Sentencing Guidelines.

Movant formally entered her guilty plea in court on September 14, 2007.

Movant

admitted in open court and under oath that she was fully satisfied with her counsel’s
representation, that she understood the terms of the plea agreement, that counsel had performed all
tasks and investigation requested of her, and that she was entering into the plea agreement of her
own free will. At no time did movant voice any dissatisfaction with defense counsel or raise any
questions with respect to any of the terms of the plea agreement.
Movant was sentenced to 262 months’ imprisonment on June 30, 2008. Her total offense
level was 34 and her appropriate criminal history category was VI. The advisory guideline range
was 262 to 325 months’ imprisonment.
Movant filed a notice of appeal on July 7, 2008, despite the waiver of appeal contained in
the plea agreement. The government moved to dismiss the appeal based on the waiver, and the
motion to dismiss was granted. See Shipman v. United States, No. 08-2539 (8th Cir. 2008).
Movant filed her first motion to vacate, pursuant to 28 U.S.C. § 2255 on February 25, 2009.
See Shipman v. United States, 4:09CV319 HEA (E.D. Mo. 2010). The Court denied the motion
to vacate on May 14, 2010. Movant appealed the judgment to the Eighth Circuit Court of
Appeals, who declined to issue a certificate of appealability. See Shipman v. United States, No.
10-2377 (8th Cir. 2010).
Discussion
In the instant motion to vacate, movant claims that the new Supreme Court case of Alleyne
v. United States, 133 S.Ct. 2151 (2013), decided in June of 2013, should be retroactively applied to
her case in order to reduce her sentence. She claims that her sentence was enhanced without
notice to her or a jury and this is unlawful under the holding of Alleyne.

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In Alleyne, the Supreme Court held that because mandatory minimum sentences increase
the penalty for the crime, any fact that increases the mandatory minimum is an Aelement@ of the
crime that must be submitted to the jury. The holding in Alleyne simply does not apply to movant.
First and foremost, movant=s motion to vacate is successive, and thus, she must seek leave from the
Eighth Circuit Court of Appeals prior to bringing the instant argument to this Court. See, e.g.
Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (holding that Alleyne did not apply
retroactively to a movant’s successive motion for § 2255 collateral relief).
Under 28 U.S.C. ' 2255:
A second or successive motion must be certified as provided in section 2244 by a panel of
the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense . . .
Absent certification from the United States Court of Appeals, this Court lacks authority
under ' 2255 to grant movant=s requested relief. As a result, the motion shall be dismissed.
However, even if movant=s motion was properly before this Court, her argument under
Alleyne would still be irrelevant. Movant entered a guilty plea and specifically entered into a plea
agreement with the government, finding that her base level offense would be 34, although it could
be higher depending upon her criminal history. At the plea hearing movant specifically agreed that
she qualified as a “career offender.” Accordingly, it was movant=s own agreement, as outlined in
her plea agreement, that resulted in her sentence of 262 months= in this case. As such, Alleyne
cannot be said to be applicable to her situation even if it were available to her in these proceedings.
See, e.g., U.S. v. Wimberly, No: 12-2210, 2013 WL 3214988, *1 (6th Cir. June 26, 2013).
Accordingly,
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IT IS HEREBY ORDERED that movant=s motion to vacate, correct or set aside her
sentence brought pursuant to 28 U.S.C. ' 2255 is DENIED and DISMISSED as SUCCESSIVE.
IT IS FURTHER ORDERED that the Court will not grant movant a certificate of
appealability.
Dated this 7th day of May, 2014.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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