McGrone v. USA

Filing 11

ORDER. (1) Petitioner's Motion to Vacate Sentence, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #4) is denied; (2) Respondent's Motion to Lift Stay and Deny Pending 28 U.S.C. § 2255 Motion on the Merits is granted (Doc. #10); and (3) The Court declines to issue a Certificate of Appealability. (Related case 10-00290-01-CR-W-ODS) Signed on 4/13/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ADAM McGRONE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 16-01233-CV-W-ODS
Crim. No. 10-00290-01-CR-W-ODS

ORDER
Pending are Petitioner’s Motion to Vacate Sentence, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #4), and Respondent’s Motion to Lift Stay
and Deny Pending 28 U.S.C. § 2255 Motion on the Merits (Doc. #10). Respondent
opposes Petitioner’s motion. Petitioner has not responded to Respondent’s motion, and
the time for doing so has passed.
Petitioner argues his sentence should be vacated, set aside, or corrected
because he was denied due process when he was sentenced pursuant to the Court’s
finding that he was a career offender under the United States Sentencing Guidelines.
Petitioner argues the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct.
2551 (2015), wherein the Supreme Court held the residual clause of the Armed Criminal
Career Act (“ACCA”) was unconstitutionally vague, should apply to the career offender
provision in the Sentencing Guidelines. Petitioner requested and was granted a stay
pending the Supreme Court’s decision in Beckles v. United States.
On March 6, 2017, the Supreme Court found “the Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)’s
residual clause is not void for vagueness.” Beckles v. United States, 137 S. Ct. 886,
895 (2017). Now that Beckles has been decided, the stay in this matter is lifted.
Respondent asks the Court to deny Petitioner’s motion to vacate his sentence.
The sole argument in Petitioner’s motion to vacate his sentence is rendered meritless
due to Beckles. Petitioner so admitted in his motion to stay. Doc. #5, at 2 (stating “[i]f
Beckles holds that Johnson is not retroactively applicable to guidelines cases on

collateral review, movant’s case would necessarily be terminated.”). Pursuant to
Beckles, Petitioner’s motion to vacate his sentence is denied. Because Petitioner made
no substantial showing of the denial of a constitutional right, the Court will not issue a
certificate of appealability.
Based upon the foregoing, the following is ordered:
(1)

Petitioner’s Motion to Vacate Sentence, Set Aside, or Correct Sentence

Pursuant to 28 U.S.C. § 2255 (Doc. #4) is denied;
(2)

Respondent’s Motion to Lift Stay and Deny Pending 28 U.S.C. § 2255

Motion on the Merits is granted (Doc. #10); and
(3)

The Court declines to issue a Certificate of Appealability.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: April 13, 2017

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