Gibson v. USA

Filing 11

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, for 5 Report and Recommendation. ORDERED that Gibson's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All other motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 6/20/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BARRY CORBET GIBSON, #28455-177

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:17cv181
CRIMINAL NO. 4:15CR00201-001

ORDER OF DISMISSAL
Movant Barry Corbet Gibson, a prisoner confined at F.C.C. Forrest City Medium, brings this
motion to vacate, set aide or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was
referred to United States Magistrate Judge Christine A. Nowak, who issued a Report and
Recommendation (Dkt #5) concluding that the motion should be denied. Gibson has filed objections
(Dkt #9).
Gibson is in custody pursuant to a conviction for the offense of bank robbery, in violation
of 18 U.S.C. § 2113(a). On May 23, 2016, after a plea of guilty, he was sentenced to 151 months
of imprisonment. Gibson did not appeal the conviction. On January 10, 2017, an amended judgment
was entered to correct a clerical error in the original judgment.
Gibson is challenging the sentence imposed in his case. He focuses on the United States
Sentencing Guidelines. Based on his criminal history, he qualified as a career offender under United
States Sentencing Guidelines § 4B1.1. PSR ¶ 23. He argues that he should not have been sentenced
as a career offender in light of the United States Supreme Court’s ruling in Johnson v. United States,
135 S. Ct. 2551(2015). Johnson concerns the application of a criminal statute, as opposed to the
Sentencing Guidelines. The Supreme Court recently declined to extend the reasoning in Johnson

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to the Sentencing Guidelines. Beckles v. United States, 137 S. Ct. 886, 895 (2017). The present
motion lacks merit in light of Beckles.
In his objections, Gibson again argues that he should not have been sentenced as a career
offender under the Sentencing Guidelines. He once again cites Johnson and related cases. Since
Beckles was decided, the Fifth Circuit has repeatedly rejected cases by inmates trying to extend
Johnson to the Sentencing Guidelines. United States v. Holley, ___ F. App’x ___, 2017 WL
1683104, at *1 (5th Cir. May 2, 2017); United States v. Garces, ___ F. App’x ___, 2017 WL
1382069, at *1 (5th Cir. Apr. 18, 2017); United States v. Martinez, ___ F. App’x ___, 2017 WL
1063450, at *1 (5th Cir. Mar. 20, 2017). Gibson’s objections lack merit.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Gibson to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Gibson’s objections are
without merit. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate
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Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that Gibson’s motion to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of
appealability is DENIED. All other motions not previously ruled on are hereby DENIED.
SIGNED this 20th day of June, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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