Whittaker v. USA

Filing 21

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that the government is granted leave to file its objection to the presentence investigation report out of time. IT IS FURTHER ORDERED that the government's motion to stay a ruling on movant's § 2255 motion for post-conviction relief is DENIED. [Doc. 20]. IT IS FURTHER ORDERED that the Clerk of Court shall file a copy of this Memorandum and Order in movant's criminal case file, United States v. Whitt aker, 4:04-CR-26 CAS. IT IS FURTHER ORDERED that the government shall file its response to movant's § 2255 motion by August 17, 2017. ( Response to Court due by 8/17/2017.). Signed by District Judge Charles A. Shaw on 8/10/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MIJKIA CARL WHITTAKER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-972 CAS

MEMORANDUM AND ORDER
This matter is before the Court on the government’s objection to the presentence
investigation report (“PSR”) and motion to stay ruling on movant’s § 2255 motion for postconviction relief.1 In its filing, the government acknowledges that its objection to the PSR is out of
time. The Court grants the government leave to file the objection out of time.
The government’s motion seeks a stay of the Court’s ruling on movant’s § 2255 motion
pending the Eighth Circuit Court of Appeals’ decision in United States v. Swopes, No. 16-1797,
which is set for rehearing en banc in September 2017. The government’s position in Swopes is that
the Eighth Circuit’s opinion in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), is incorrect. In
Bell, the Eighth Circuit held that a defendant’s prior Missouri conviction for robbery in the second
degree did not constitute a “crime of violence” under the United States Sentencing Guidelines. Id.
at 966-67. Movant relies on Bell in his § 2255 motion to argue that his prior convictions for
Missouri second degree robbery likewise are not “violent felonies” under the Armed Career

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The government filed the document in both movant’s criminal case, United States v.
Whittaker, 4:04-CR-26 CAS (Doc. 80), and in this § 2255 action (Doc. 20).
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Criminal Act. Because the government contends Bell was wrongly decided, and will argue this
position before the Eighth Circuit in Swopes in September, it seeks a stay.
The Court will deny the government’s request for a stay. Bell is controlling law in the
Eighth Circuit. Although the Bell decision is implicated in the Swopes case, the Court cannot find
this justifies a stay of this action. The PSR prepared by the United States Probation Office states
that movant no longer meets the armed career criminal provisions of the Armed Career Criminal Act
under Bell, and is entitled to a sentence reduction under Johnson v. United States, 135 S. Ct. 2551
(2015). The Court considers movant’s § 2255 motion a priority, and therefore will not stay the case
pending a determination by the Eighth Circuit in Swopes.
Accordingly,
IT IS HEREBY ORDERED that the government is granted leave to file its objection to
the presentence investigation report out of time.
IT IS FURTHER ORDERED that the government’s motion to stay a ruling on movant’s
§ 2255 motion for post-conviction relief is DENIED. [Doc. 20]
IT IS FURTHER ORDERED that the Clerk of Court shall file a copy of this Memorandum
and Order in movant’s criminal case file, United States v. Whittaker, 4:04-CR-26 CAS.
IT IS FURTHER ORDERED that the government shall file its response to movant’s
§ 2255 motion by August 17, 2017.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 10th day of August, 2017.

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