Marshall v. USA

Filing 3

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Marshall's motion to vacate, set aside, or correct sentence is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that I will not issue a certificate of appealability. An Order of Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on 8/10/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EARL THOMAS MARSHALL,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:17-CV-1350 CDP

MEMORANDUM AND ORDER
This matter is before me on the motion of Earl Marshall to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255. The motion is denied.
On March 14, 2008, movant pled guilty to one count of conspiracy to
possess with the intent to distribute more than 100 kilograms of marijuana. United
States v. Marshall, No. 4:07-CR-486 CDP. On August 1, 2008, I sentenced him to
a term of 192 months’ imprisonment. In applying the Sentencing Guidelines, I
found him to be a Career Offender under § 4B1.1 because he had two prior felony
convictions for controlled substance offenses, and I enhanced his sentence
accordingly. I did not apply any statutory sentence enhancements.
In this case, movant argues that his sentence is now invalid under Mathis v.
United States, 136 S.Ct. 2243 (2016), and he asserts that his motion is timely under
28 U.S.C. § 2255(f)(3) because Mathis announced a new rule that has been made
retroactive by the Supreme Court. Specifically, he argues that his prior Oklahoma

conviction for trafficking in marijuana is no longer a valid ground for applying the
Career Offender enhancement under § 4B1.1 of the Sentencing Guidelines.
In Mathis, the Court held that a prior conviction does not qualify as the
generic form of a predicate “violent felony” offense listed in the Armed Career
Criminal Act (“the ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), if an element of the
crime of conviction is broader than an element of the generic offense because the
crime of conviction enumerates various alternative factual means of satisfying a
single element. Id. at 2251.
First, Mathis has no bearing movant’s sentence. Section 924(e)(2)(B)(ii)
applies to prior convictions for “violent felonies,” not prior convictions for
“controlled substance offenses,” both of which are independent grounds for
sentencing enhancements. Compare 18 U.S.C. § 924(e)(2)(A) with § 924(e)(2)(B);
and see U.S.S.G. § 4B1.1(a)(3) (requiring Career Offender enhancement for
offenders with “at least two prior felony convictions of either a crime of violence
or a controlled substance offense.”) (emphasis mine).

And there is no question

whether trafficking in marijuana is a controlled substance offense. Therefore,
movant’s claim is meritless.
Second, this action is also barred by the limitations period because Mathis is
not retroactively applicable to cases on collateral review.

It was a statutory

interpretation case, not a substantive constitutional challenge under the Due
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Process Clause. See Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016)
(“Mathis did not announce [a new rule made retroactive by the Supreme Court]; it
is a case of statutory interpretation.”); see also United States v. Evenson, ---F.3d---,
2017 WL 3203547 (8th Cir. July 28, 2017) (“As the Supreme Court presented it,
the decision [in Mathis] simply reflected the ‘straightforward’ application of
decades of precedent.”). For these reasons, this action is dismissed. See 28 U.S.C.
§ 2255 Rule 4.
Finally, movant has failed to demonstrate that jurists of reason would find it
debatable whether he is entitled to relief. Therefore, I will not issue a certificate of
appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that Marshall’s motion to vacate, set aside, or
correct sentence is DENIED, and this action is DISMISSED.
IT IS FURTHER ORDERED that I will not issue a certificate of
appealability.
An Order of Dismissal will be filed forthwith.
Dated this 10th day of August, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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