United States District Court, D. Minnesota
K. Bell, Esq., United States Attorney's Office,
Minneapolis, MN, on behalf of Plaintiff.
LeEverette Cushawn Cargill, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant LeEverette Cushawn Cargill's
(“Cargill”) Pro Se Motion for Leave to Supplement
Newly Decided Case Law (“Motion for Leave to
Supplement”) [Docket No. 539] and Pro Se Motion for
Voluntary Dismissal of 2255 Motion (“Motion for
Voluntary Dismissal”) [Docket No. 540]. In addition to
these motions, Cargill has filed a Pro Se Notice of Dismissal
[Docket No. 541] stating that he is voluntarily dismissing
without prejudice his Pro Se Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“§ 2255 Motion”) [Docket
United States of America (the “Government”) has
filed a response to Cargill's § 2255 Motion, arguing
that the § 2255 Motion should be denied. See
Response [Docket No. 542]. The Response does not address
Cargill's Motion for Voluntary Dismissal or his Notice of
Dismissal, both which were filed the day before the
Government's Response. For the reasons set forth below,
Cargill's Motion for Voluntary Dismissal is granted and
his Motion for Leave to Supplement is denied as moot.
March 15, 2011, Cargill entered a plea of guilty to
possession with intent to distribute cocaine in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B), as charged in
the Information. Plea Agreement [Docket No. 287]. In the Plea
Agreement, Cargill stipulated to the U.S. Sentencing
Guidelines (“U.S.S.G.”) calculation, including a
designation as a Career Offender under U.S.S.G. §
4B1.1(a) based on his two prior felony convictions for crimes
of violence; namely, terroristic threats in violation of
Minn. Stat. § 609.713 and felony domestic assault. Plea
Agreement at 3; Presentence Investigation ¶¶ 68,
76. At the time Cargill was sentenced, the definition of
“crime of violence” included a residual clause
that applied to any offense punishable by imprisonment for
more than one year that “otherwise involves conduct
that presents a serious potential risk of injury to
another.” U.S.S.G. § 4B1.2(a)(2) (2012).
27, 2016, Cargill filed the instant § 2255 Motion,
arguing that the residual clause in § 4B1.2(a)(2) is
void for vagueness and that his sentence was therefore
unconstitutionally enhanced. The Government's response to
Cargill's § 2255 Motion was stayed pending
resolution by the United States Supreme Court of Beckles
v. United States, 137 S.Ct. 886 (2017), which was
decided on March 6, 2017. See Order, July 26, 2016
[Docket No. 534] (granting Government's request to stay
response). The Supreme Court held that the residual clause in
§ 4B1.2(a)(2) is not void for vagueness.
Beckles, 137 S.Ct. at 894-95.
March 2, 2017, four days before Beckles was decided,
Cargill filed the Motion for Leave to Supplement. The
Government has not responded to that motion.
March 7, 2017, the day after Beckles was decided,
Cargill prepared and signed the Motion for Voluntary
Dismissal and the Notice of Dismissal, which were received by
mail in the clerk's office on March 13, 2017 and
electronically filed the same day. The Motion for Dismissal
states that Cargill is requesting dismissal because he no
longer seeks the relief sought in the § 2255 Motion.
March 14, 2014, the Government filed its Response to
Cargill's § 2255 Motion. The Government argues that
the § 2255 Motion should be denied because it rests
entirely upon the contention that the § 4B1.2(a)(2)
residual clause is void for vagueness, and the Supreme Court
held in Beckles that § 4B1.2(a)(2) is not void
for vagueness. The Response does not address Cargill's
requests to dismiss the § 2255 Motion without prejudice.
requests for dismissal without prejudice are premised on
Federal Rule of Civil Procedure 41(a). The Federal Rules of
Civil Procedure apply to § 2255 proceedings to the
extent that they are not inconsistent with any statutory
provisions or the Rules Governing Section 2255 Proceedings.
R. Gov'g § 2255 Proceedings, R. 12. Federal Rule of
Civil Procedure 41(a) ...