Carroll v. USA

Filing 16

Order denying Petitioner's 1 Motion to Vacate/Set Aside/Correct Sentence (2255) and 15 Motion to dismiss case without prejudice. The court declines to issue a certificate of appealability. Petitioner's 4 Motion to stay and hold case in abeyance is denied as moot. Signed on 5/22/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
BARRETT J. CARROLL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 5:16-CV-06073-DGK
(Crim. No. 5:12-CR-06015-DGK-1)

ORDER DENYING MOTION TO CORRECT SENTENCE
Petitioner Barrett J. Carroll (“Carroll”) 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 92 months’ imprisonment.
Now before the Court are Carroll’s Motion to Vacate, Set Aside, or Correct Sentence
(Doc. 1) under 28 U.S.C. § 2255, Motion to Stay and Hold Case in Abeyance (Doc. 4), and
Motion to Dismiss Case Without Prejudice (Doc. 15). Because the Supreme Court recently
rejected Carroll’s argument in Beckles v. United States, 137 S. Ct. 886 (2017), his § 2255 motion
and motion to dismiss without prejudice are DENIED. Carroll’s motion to stay is DENIED AS
MOOT.
Background1
On June 6, 2013, Carroll pled guilty to one count of being a felon in possession of a
firearm, pursuant to a written plea agreement. Plea Agrmnt. (Doc. 24). In this agreement,
Carroll waived his right to attack his sentence, directly or collaterally, on any ground except
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The facts in this section derive from: (1) the criminal case record; and (2) the allegations in Carroll’s motion, taken
as true except where they contradict the record. Because the facts in this light do not entitle Carroll 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).

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claims of ineffective assistance of counsel, prosecutorial misconduct, or an illegal sentence. Id. ¶
15. The agreement defines an “illegal sentence” as one “imposed in excess of the statutory
maximum,” and states the term specifically “does not include less serious sentencing errors, such
as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an
unreasonable sentence.” Id. (emphasis in original). Carroll does not challenge the validity of his
plea agreement and this waiver.
On December 18, 2013, the Court sentenced Carroll to 92 months’ imprisonment after
carefully considering the relevant factors and reviewing the United States Sentencing Guidelines
(the “Guidelines”). In calculating Carroll’s Guidelines range, the Court found he was eligible for
an enhanced base offense level because he had a prior conviction that qualified as a “crime of
violence” under Guidelines § 4B1.2.

Specifically, the Court adopted the Presentence

Investigation Report (“PSR”) finding that Carroll’s prior Missouri conviction for first-degree
burglary qualified him for an enhancement under Guidelines § 2K2.1(a). See PSR ¶¶ 14, 29
(Crim. Doc. 29). The Guidelines calculation yielded an advisory imprisonment range of 120 to
150 months. But, because the statutory maximum term of imprisonment for Carroll’s offense is
10 years, the Guideline suggestion was reduced to 120 months. Id. ¶ 65. The Court sentenced
Carroll to 92 months’ imprisonment, 28 months below the Guidelines recommendation and the
statutory maximum. J. & Commitment (Crim. Doc. 35). Carroll did not file a direct appeal, and
the judgment became final on January 2, 2014. See Fed. R. App. P. 4(b)(1)(A)(i) (“In a criminal
case, a defendant’s notice of appeal must be filed in the district court within 14 days after . . . the
entry of either the judgment or the order being appealed . . . .”).

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Carroll filed the instant motion on June 16, 2016. The Court withheld ruling while
awaiting the Supreme Court’s opinion in Beckles. That decision was handed down on March 6,
2017.
Discussion
I.

The Court will not dismiss Carroll’s § 2255 motion without prejudice, and will
consider the motion on its merits.
The Court first addresses Carroll’s motion to dismiss his § 2255 motion without prejudice

so he may file another motion pursuant to § 2255 without that motion being considered a second
or successive petition requiring the permission of the Eighth Circuit to proceed (Doc. 13). The
Government opposes this motion, arguing the Court “should not allow a state or federal prisoner
to voluntarily dismiss a post-conviction motion to avoid application of an impending or recently
issued adverse decision.” Gov’t Supp. Response at 2-3 (Doc. 12). Even if dismissing this motion
without prejudice could allow Carroll to file another § 2255 motion without permission from the
Eighth Circuit, cf. Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997) (“[A] petitioner for
habeas corpus cannot be permitted to thwart the limitations on the filing of second or successive
motions by withdrawing his first petition as soon as it becomes evident that the district court is
going to dismiss it on the merits.”); Thai v. United States, 391 F.3d 491, 495 (2d Cir. 2004) (“[I]f
a petitioner clearly concedes upon withdrawal of a § 2255 petition that the petition lacks merit,
the withdrawal is akin to a dismissal on the merits and subsequent petitions will count as
successive . . . .”), the Court will not acquiesce in this sort of gamesmanship. Carroll’s motion to
dismiss without prejudice is denied, and the Court will consider his § 2255 motion on its merits.
II.

Carroll’s enhanced base level sentence did not deprive him of due process of law.
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
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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).
Carroll argues his prior conviction for first-degree burglary no longer qualifies as a crime
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).

Carroll contends that under Johnson, the Court’s Guidelines calculation

violated due process.
This argument is without merit. Carroll 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. Instead, they merely guide the
exercise of a sentencing court’s discretion in choosing an appropriate sentence within the
permissible range. Id. Here, Carroll was sentenced to a below-Guidelines term of imprisonment
that was not in excess of the statutory maximum and, therefore, not an illegal sentence.
Because Carroll’s claim is based on the same vagueness challenge the Supreme Court
rejected in Beckles, it is denied.2
Conclusion
For these reasons, Carroll’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1)
and Motion to Dismiss Case Without Prejudice (Doc. 15) are DENIED, and the Court declines to

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Indeed, Carroll admitted that “[i]f Beckles holds that Johnson is not retroactively applicable to guidelines cases on
collateral review, [his] case would necessarily be terminated.” Pet.’s Mot. to Stay at 2 (Doc. 4). Here, there is
nothing to be applied retroactively because the Supreme Court held that the Guidelines are not subject to a void-forvagueness challenge. Beckles, 137 S. Ct. 886.

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issue a certificate of appealability. His Motion to Stay and Hold Case in Abeyance (Doc. 4) is
DENIED AS MOOT.
IT IS SO ORDERED.
Date: May 22, 2017

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

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