Bass v. USA

Filing 11

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that movants motion for reconsideration of the denial of his motion to vacate [Doc. # 10 ] is DENIED. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. Signed by District Judge Audrey G. Fleissig on 12/29/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL DAMOND BASS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

)
)
)
)
)
)
)
)
)

No. 4:16-CV-612 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Michael Bass to supplement his motion
to vacate his conviction and sentence. After reviewing movant’s motion, it is apparent he is
seeking reconsideration of the Court’s September 22, 2016 Order denying his motion to vacate
and dismissing this action. His motion for reconsideration will be denied.
In his motion for reconsideration, movant argues, once again, that he is entitled to relief
from his conviction and sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). In
Johnson, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act
(“the ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.
The ACCA enhances the punishment for firearms offenses under 18 U.S.C. § 922(g)
when the defendant has at least three prior convictions for a serious drug offense or a “violent
felony.” The term “violent felony” is defined in the ACCA as felony offense that “(1) has as an
element the use, attempted use, or threatened use of physical force against the person of another,
or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”

18 U.S.C.

§ 924(e)(B) (emphasis added). The “otherwise involves” language of the ACCA is the residual
clause that the Supreme Court found unconstitutional. Johnson, 135 S.Ct. at 2563.
As noted in the Court’s prior Memorandum and Order, movant pled guilty to controlled
substance offenses and felon in possession of a firearm, and the Court sentenced him to 240
months’ imprisonment. United States v. Bass, No. 4:11-CR-223 AGF (E.D. Mo.).
Before determining movant’s sentence, the Court determined that although movant had
three qualifying burglary convictions such that he would have been eligible for sentence
enhancements under the ACCA or Chapter Four of the United States Sentencing Guidelines,
these qualifying convictions would not be used for enhancements. Thus, it is important to note
in movant’s case that the Court did not enhance movant’s sentence under either the ACCA
or Chapter Four of the U.S.S.G.1
Rather, the Court determined that the offense level from Chapters Two and Three of the
Guidelines applied and sentenced movant accordingly.2 Because the Court did not enhance his
sentence under the ACCA or Chapter Four, Johnson simply does not provide movant with relief
from his sentence.

1

Movant’s prior convictions for state burglary could only have been used for sentencing
enhancements under either the ACCA or under Chapter Four of the U.S.S.G. Since the Court did
not use the burglary convictions for enhancements under Chapter Four of the Sentencing
Guidelines, or under the Armed Career Criminal Act, he is not entitled to a reduction in his
sentence even if the Court were to determine that movant’s Missouri burglary convictions no
longer qualify as “crimes of violence” under the ACCA.
2
Movant’s drug offenses were grouped pursuant to Section 3D1.2(d) of the U.S.S.G., and the
offense level for the most serious group of counts (Counts 1, 2 and 3 of the Indictment) was used
pursuant to Section 3D1.3(a). The Guideline for violations of 21 U.S.C. § 841(a)(1) and § 846 is
found in Section 2D1.1(a)(2), as the offense of conviction established that death resulted from
the use of the substance, making movant’s base offense level a 38. In other words, because
movant’s drug offense sentencing levels were higher than any sentencing levels that could have
been reached under the ACCA or with a Chapter Four enhancement, movant was sentenced with
the higher drug offense levels rather than under the ACCA or with the Chapter Four
enhancement.

2

In his motion for reconsideration, movant spends the entirety of his brief arguing that the
new Supreme Court case of Mathis v. United States, 136 S.Ct. 2243 (2016), has changed the way
his prior burglary convictions should be used for sentencing enhancements under Missouri law.
But because the Chapter Four and Armed Career Criminal Act offense levels were not utilized in
his sentencing calculations, Mathis has no applicability to his conviction or sentence. Therefore,
movant’s motion for reconsideration must be denied.
Finally, movant has failed to make a substantial showing of the denial of a constitutional
right, which requires a demonstration “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Khaimov v. Crist, 297 F.3d
783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a Certificate of
Appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that movant’s motion for reconsideration of the denial of
his motion to vacate [Doc. #10] is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of
Appealability.
Dated this 29th day of December, 2016.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

3