Manuel v. USA

Filing 15

ORDER - Petitioner's Motion to Vacate, Set Aside, or Correct Sentence 1 is DENIED, the Court will not hold an evidentiary hearing, and the Court declines to issue a certificate of appealability. Signed on 8/30/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BERNARD MANUEL,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 4:16-CV-00616-DGK
(Crim. No. 4:11-CR-00257-DGK-1)

ORDER DENYING MOTION TO CORRECT SENTENCE
Petitioner Bernard Manuel (“Petitioner”) pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the Court
sentenced him to 96 months’ imprisonment.
Now before the Court are Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
(Doc. 1) under 28 U.S.C. § 2255, and Government’s Motion to Lift Stay and Deny Pending 28
U.S.C. § 2255 Motion on the Merits (Doc. 13). Because the Supreme Court recently rejected
Petitioner’s argument in Beckles v. United States, 137 S. Ct. 886 (2017), his § 2255 motion is
DENIED. The Government’s motion to Deny Petitioner’s motion is GRANTED.
Background1
On May 31, 2012, Petitioner pled guilty, pursuant to a written plea agreement, to one
count of being a felon in possession of a firearm. Plea Agrmnt. (Crim. Doc. 33). On January 24,
2013, the Court sentenced Petitioner to 96 months’ imprisonment after carefully considering the
relevant factors and reviewing the United States Sentencing Guidelines (the “Guidelines”). In
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The facts in this section derive from: (1) the criminal case record; and (2) the allegations in Petitioner’s motion,
taken as true except where they contradict the record. Because the facts in this light do not entitle Petitioner to
relief, the Court denies him an evidentiary hearing and rules on the facts in the record. See Thomas v. United States,
737 F.3d 1202, 1206 (8th Cir. 2013) (citing 28 U.S.C. § 2255(b)); Rules Governing Section 2255 Proceedings, Rule
8(a).

calculating Petitioner’s Guidelines range, the Probation and Parole Office found he was eligible
for an enhanced base offense level because he had two prior convictions that qualified as “crimes
of violence.” Specifically, the Presentence Investigation Report (“PSR”) found Petitioner’s prior
Missouri convictions for second-degree robbery and second-degree burglary qualified him for an
enhancement under Guidelines § 2K2.1(a). See PSR ¶¶ 15, 29, 33, 38 (Crim. Doc. 35). This
enhancement elevated Petitioner’s base offense level to 24, yielding an advisory imprisonment
range of 77 to 96 months. The Court sentenced Petitioner to the top end of the advisory range,
but below the statutory maximum of 10 years. Petitioner appealed, and the Eighth Circuit Court
of Appeals affirmed his sentence on December 19, 2013. United States v. Manuel, 549 F.App’x
583 (2013).
Petitioner filed the instant motion on June 15, 2016. The Court withheld ruling while
awaiting the Supreme Court’s opinion in Beckles. That decision was handed down on March 6,
2017.
Discussion
A district court may vacate a sentence if it “was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255(a). A § 2255 motion “is not a substitute for a
direct appeal, and is not the proper way to complain about simple . . . errors.” Anderson v.
United States, 25 F.3d 704, 706 (8th Cir. 1994) (internal citation omitted).
Petitioner argues his prior convictions for second-degree robbery and second-degree
burglary no longer qualify as crimes of violence in the wake of Johnson v. United States, 135 S.
Ct. 2551 (2015), the Supreme Court decision invalidating the Armed Career Criminal Act’s
(“ACCA”) residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). Petitioner contends that under Johnson,
the Court’s Guidelines calculation violated due process.

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This argument is without merit. Petitioner was not sentenced under the ACCA, but
instead under a similarly-worded provision in the Guidelines. See U.S.S.G. § 4B1.2. The
Guidelines are not subject to a void-for-vagueness challenge under the Due Process Clause like
the ACCA’s residual clause was in Johnson. Beckles, 137 S. Ct. at 896. Unlike the ACCA, the
Guidelines do not fix the permissible statutory range of punishment. Id. at 894. They merely
guide the exercise of a sentencing court’s discretion in choosing an appropriate sentence within
the permissible range. Id. Here, Petitioner was sentenced to a term of imprisonment that was not
in excess of the statutory maximum and, therefore, not an illegal sentence.
Petitioner’s claim is denied.
Conclusion
For these reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1)
is DENIED, the Court will not hold an evidentiary hearing, and the Court declines to issue a
certificate of appealability. The Government’s Motion to Lift Stay and Deny Pending 28 U.S.C.
§ 2255 Motion on the Merits (Doc. 13) is GRANTED.
IT IS SO ORDERED.
Date: August 30, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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