Warnke v. United States of America

Filing 8

OPINION and ORDER granting 6 Government's Motion to Dismiss and Denying Petitioner's 2255 Motion. Signed by Chief Judge Roberto A. Lange on 07/17/2023. (KLE)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
DUSTIN DUANE WARNKE,

3:22-CV-03024-RAL

Plaintiff,

OPINION AND ORDER GRANTING
GOVERNMENT'S MOTION TO DISMISS
AND DENYING PETITIONER'S § 2255

vs.

UNITED STATES OF AMERICA,

MOTION

Defendant.

Plaintiff Dustin Duane Warnke filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255, arguing that the federal prison sentence he is currently serving should be
reduced because his criminal history category was erroneously calculated under the Federal
Sentencing Guidelines at his underlying sentencing. Doc. 1. The United States has moved to
dismiss Warnke's motion. Doc. 6. For the reasons stated below, this Court grants the United
States' motion to dismiss and denies Warnke's § 2255 motion.
I. Background
On August 24, 2020, pursuant to a plea agreement with the United States, Warnke plead
guilty to one count of conspiracy to distribute a controlled substance in violation of 18 U.S.C. §§

846, 841(a)(l) and 841(b)(l)(A). CR Docs. 55, 59.1 On November 17, 2020, the undersigned
judge sentenced Warnke to 1 74-months imprisonment with 5 years of supervised release. CR Doc.

' Docket entries from Warnke's criminal case (3:19-CR-30150-RAL-1) will be cited as "CR Doc."
Docket entries from the present case will be cited as "Doc."

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77. Warnke filed a notice of appeal on November 20, 2020, but because Warnke had waived the

right to appeal in his plea agreement, the United States Court of Appeals for the Eighth Circuit
dismissed Warnke's appeal on March 11, 2021. CR Docs. 55, 81, 97.
On December 19, 2022, Warnke filed a pro se motion to reduce his sentence, CR Doc. 99,
which this Court construed as a motion under 28 U.S.C. § 2255, Doc. 1, 6. This Court ordered

that the Clerk of Court serve a copy of all pleadings on the United States and directed the United
States to file an answer, and if it so chose, a motion to dismiss, within thirty days of service of the
pleadings. Doc. 6 at 2. On February 21, 2023, the United States filed a response to Warnke's
motion, Doc. 5, a motion to dismiss, Doc. 6, and a memorandum in support of the motion to
dismiss. Doc. 7. Warnke has not responded to the motion to dismiss.
II. Discussion
Warnke seeks relief under to 28 U.S.C. § 2255. Warnke alleges that the United States
probation officer who prepared his presentence investigation report prior to sentencing on his
underlying criminal offense incorrectly calculated his criminal history category under the
Sentencing Guidelines. Doc. 1 at 1. At the time the presentence investigation report was drafted,
Warnke had two pending criminal cases in South Dakota state court involving drug possession and
robbery charges. Warnke's § 2255 petition alleges these two criminal cases were used to elevate
him to criminal history category III under the Sentencing Guidelines. Id. at 2-3. Because those
state cases were later dismissed (the drug case on November 20, 2020, Doc. 1-1 at 3, and the
robbery case on September 7, 2022, Doc. 1-1 at 4) Warnke says he should not have to serve a
sentence that was based in part on a criminal history category that reflected those charges. Id.

Section 2255(a) states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in

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violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.

When considering a § 2255 motion, a court holds an evidentiary hearing "unless the motion
and the files and the records of the case conclusively show that [the prisoner] is entitled to no

relief." Holder v. United States, 721 F.3d 979, 993 (8th Cir. 2013) (cleaned up and citation
omitted). "No hearing is required where the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based." Watson v. United States, 493

F.3d 960, 963 (8th Cir. 2007) (cleaned up and citation omitted). The Eighth Circuit has stated:
A § 2255 motion may be dismissed without a hearing if (1) movant's allegations,
accepted as true, would not entitle him to relief, or (2) the allegations cannot be
accepted as true because they are contradicted by the record, are inherently
incredible, or are conclusions rather than statements of fact.

Winters v. United States, 716 F.3d 1098, 1103 (8th Cir. 2013) (cleaned up and citation omitted).
Because the record conclusively demonstrates that Warnke is not entitled to relief, an evidentiary
hearing is not necessary in this case. This Court can readily dismiss this case for several reasons.
First and foremost, Warnke's argument on the merits in his § 2255 motion is premised on
a plainly incorrect recollection of his sentencing proceedings. The two dismissed state cases
Warnke cites were not part of his criminal history category calculation and were never assigned
criminal history points. Rather, Warnke was assigned one point each for state convictions related
to driving under the influence and receiving stolen property and two points for committing his
federal offense while being on unsupervised probation; the four total points from these offenses
placed Warnke in criminal history categoiy III. The record affirmatively refutes the factual

assertions upon which Warnke's § 2255 petition is based.

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Second, the United States Court of Appeals for the Eighth Circuit has "consistently held
'that ordinary questions of guideline interpretation falling short of the "miscarriage of justice"
standard do not present a proper section 2255 claim.'" Sun Bear v. United States, 644 F.3d 700,

704 (8th Cir. 2011) (quoting Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995)). Warnke's
arguments are based on "garden-variety Sentencing Guideline application issues" that are not
typically cognizable on a § 2255 motion. Auman, 67 F.3d at 161. And even ifWarnke's arguments

were factually supported, he has failed to show that his criminal history calculation resulted in a
miscarriage of justice, especially considering he faced at least a 120-month sentence under the
statutorily required minimum.

Finally, Warnke's § 2255 motion is untimely. "[A] federal prisoner may timely file a §
2255 motion within one year of 'the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence.'" Odie v. United

States, 42 F.4th 940, 945 (8th Cir. 2022) (quoting 28 U.S.C. § 2255(f)(4)). Even if § 2255 were
the proper procedural vehicle for Warnke to raise issues with his criminal history category
calculation, which it is not, and even if the two state charges he cites were erroneously included in
that calculation, which they were not, Warnke was sentenced, appealed, and had his appeal

dismissed by the Eighth Circuit well over one year before he filed his motion, and he had notice
of his criminal history calculation by his sentencing hearing in November 2020 at the absolute
latest.

III. Conclusion
For the above reasons, it is
ORDERED that the Government's Motion to Dismiss Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence, Doc. 6, is granted. It is finally

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ORDERED that Warnke's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence, Doc. 1, is denied.

DATED this 17th day of July, 2023.

BY THE COURT:

ROBERTO A. LANGE

CHIEF JUDGE