Moore v. USA

Filing 4

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the motion of Kendall Moore to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with prejudice. Judgment will be entered forthwith. Signed by District Judge E. Richard Webber on 8/3/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENDALL N. MOORE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:16-CV-1047 ERW

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Kendall Moore to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. The motion is denied.
On March 6, 2013, movant pled guilty to manufacturing marijuana, possession with
intent to distribute marijuana, felon in possession of a firearm, and maintaining a drug involved
premises. United States v. Moore, No. 4:12-CR-255 ERW. The Court sentenced her to ninetyfive months’ imprisonment. She did not appeal, and she did not file a timely § 2255 motion.
In this action, movant argues that she is entitled to relief under Johnson v. United States,
135 S.Ct. 2551 (2015). In Johnson, the Court held 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’s sentence was not enhanced under the ACCA. Nor was her base level enhanced
under § 2K2.1 of the United States Sentencing Guidelines for a prior “crime of violence.” Under
§ 2K2.1, her base level was calculated to be 20 because she was found to have possessed at least
one “semiautomatic firearm that is capable of accepting a large capacity magazine.” As a result,
Johnson does not provide her with relief, and the motion is denied.
Finally, movant has not met the burden for issuing a certificate of appealability because
she has not demonstrated “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).
Accordingly,
IT IS HEREBY ORDERED that the motion of Kendall Moore to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with
prejudice.
Judgment will be entered forthwith.
So Ordered this 3rd day of August, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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