Bevly v. USA

Filing 13

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Motion for Reconsideration of the Court's November 23, 2016 Memorandum and Order [ECF No. 9 ] is GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that Petitioner Marlin Bevly's Motion to Correct Sentence under 28 U.S.C. § 2255 is DENIED, and DISMISSED. Signed by District Judge E. Richard Webber on 3/23/17. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARLIN BEVLY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:16CV00965 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Marlin Bevly’s Motion for Reconsideration
of the Court’s November 23, 2016 Memorandum and Order [ECF No. 9].
On November 23, 2016, this Court denied Petitioner’s Motion to Correct Sentence under
28 U.S.C. § 2255, finding Petitioner remained an Armed Career Criminal because his prior
convictions for robbery in the first degree in Missouri qualified as violent felonies under the
Armed Career Criminal Act (“ACCA”). On March 7, 2017, the Court vacated it’s denial of
Petitioner’s Motion to Correct Sentence, because it should have applied the modified categorical
approach, rather than the categorical approach.
The Government submitted to the Court records of Petitioner’s prior convictions for the
Court to apply the modified categorical approach. The indictment for Petitioner’s prior six
convictions for Robbery First Degree charges Petitioner with forcibly stealing, and in the course
Petitioner threatened immediate use of a dangerous instrument against a person. This element of
the statute for Robbery in the First Degree, is clearly an element involving the use, attempted
use, or threatened use of physical force, which qualifies as a violent felony in the Armed Career

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Criminal Act. Therefore, Petitioner remains an armed career criminal and is not entitled to be
resentenced.
Accordingly,
IT IS HEREBY ORDERED that Motion for Reconsideration of the Court’s November
23, 2016 Memorandum and Order [ECF No. 9] is GRANTED, in part, and DENIED, in part.
IT IS FURTHER ORDERED that Petitioner Marlin Bevly’s Motion to Correct
Sentence under 28 U.S.C. § 2255 is DENIED, and DISMISSED.
So Ordered this 23rd day of March, 2017.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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