Weatherspoon v. United States of America

Filing 2

ORDER signed by Judge Lynn Adelman on 7/13/16 dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). The Clerk shall enter judgment dismissing this action. (cc: all counsel, via USPS to Anthony Weatherspoon) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ANTHONY WEATHERSPOON
Petitioner-defendant,
v.

Case No. 16-C-900
(Criminal Case No. 13-CR-87)

UNITED STATES OF AMERICA
Respondent-plaintiff.

ORDER
On October 18, 2013, petitioner Anthony Weatherspoon pleaded guilty to bank robbery,
contrary to 18 U.S.C. § 2113(a). At his March 14, 2014, sentencing hearing, without objection,
I adopted the guideline calculations in the pre-sentence report (“PSR”): base offense level 20,
U.S.S.G. § 2B3.1(a); plus 2 because the property of a financial institution was taken, §
2B3.1(b)(1); plus 3 because a dangerous weapon was brandished or possessed, §
2B3.1(b)(2)(E); plus 2 because a person was restrained, § 2B3.1(b)(4)(B); and minus 3 for
acceptance of responsibility, U.S.S.G. § 3E1.1, producing a final offense level of 24. The PSR
set the criminal history category at III, producing a guideline range of 63-78 months. On
consideration of the factors under 18 U.S.C. § 3553(a), I imposed a sentence of 72 months’
imprisonment. Petitioner took no direct appeal.
On April 29, 2016, petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, seeking to raise a claim under Johnson v. United States, 135 S. Ct. 2551 (2015). On
May 4, 2016, I denied that motion. Petitioner again did not appeal. On July 11, 2016,
petitioner filed another § 2255 motion, this time arguing that the court erred in imposing the
enhancement for possession of a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(E).

Section 2255(h) forbids a prisoner to file a second or subsequent collateral attack
without first obtaining permission from the court of appeals. Curry v. United States, 507 F.3d
603, 604 (7th Cir. 2007). The district court must dismiss for lack of jurisdiction a successive
motion filed without appellate permission. Id. at 605.
THEREFORE, IT IS ORDERED that petitioner’s § 2255 motion (R. 1) is DISMISSED.1
The Clerk shall enter judgment dismissing this action.
Dated at Milwaukee, Wisconsin, this 13th day of July, 2016.
/s Lynn Adelman
LYNN ADELMAN
District Judge

1

I decline to transfer the motion to the court of appeals. See United States v. Coleman,
763 F.3d 706, 708 (7th Cir. 2014) (noting that guideline errors generally are not cognizable
under § 2255), cert. denied, 135 S. Ct. 1574 (2015); see also United States v. Stitman, 472
F.3d 983, 987-88 (7th Cir. 2007) (imposing U.S.S.G. § 2B3.1(b)(2)(E) enhancement on similar
facts). The PSR recommended the enhancement based on the objective impression created
by defendant’s conduct, not merely the subjective belief of the teller. (See PSR ¶ 27; see also
Sen. Hr’g Tr. [R. 21] at 21.)
2