Bass v. USA

Filing 8

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion to vacate is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. Signed by District Judge Audrey G. Fleissig on 09/22/2016. (KCB)

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 vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. The motion is denied.
Movant argues that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551
(2015), in which the 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.
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.). In determining his sentence, the Court determined that he had three
qualifying burglary convictions as to be eligible for sentence enhancements under the ACCA or
Chapter Four of the United States Sentencing Guidelines. However, the Court did not enhance
his sentence under either of those provisions. The Court determined that the offense level from
Chapters Two and Three of the Guidelines applied and sentenced him accordingly. Because the
Court did not enhance his sentence under the ACCA or Chapter Four, Johnson does not provide
him with relief. As a result, the motion is 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 the motion to vacate is DENIED, and this action is
DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of
Appealability.
Dated this 22nd day of September, 2016.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

2