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United States v. Legrand

United States District Court, D. Minnesota

April 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KELLEY JOSEPH LEGRAND, Defendant.

          Kelley Joseph LeGrand, 18472, pro se.

          Carol M. Kayser, Assistant United States Attorney, for plaintiff.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          JOHN R. TUNHEIM Chief Judge

         Defendant Kelley Joseph LeGrand is currently serving a 235-month term of imprisonment for drug-related offenses. LeGrand now brings a 28 U.S.C. § 2255 motion challenging his sentencing, under Johnson v. United States, 135 S.Ct. 2551 (2015). Because the Supreme Court recently decided Johnson's holding does not extend to the United States Sentencing Guidelines Manual (“Guidelines”), the Court will deny LeGrand's motion to vacate and motion to appoint counsel.

         BACKGROUND

         On April 21, 2004, a jury found LeGrand guilty of one-count Conspiracy to Distribute Methamphetamine and one-count Aiding and Abetting, Possession with Intent to Distribute Methamphetamine. LeGrand filed a motion for a new trial, which the Court denied on May 20, 2004. On December 30, 2004, the Court sentenced LeGrand to 262 months imprisonment on each count to be served concurrently and denied LeGrand's motion for a downward departure.

         LeGrand appealed the application and constitutionality of the Guidelines. The Eighth Circuit reversed LeGrand's sentence in light of United States v. Booker, 543 U.S. 220 (2005), and remanded for resentencing. (J. of USCA, Apr. 22, 2005, Docket No. 129.) On September 8, 2005, the Court resentenced LeGrand to 235 months imprisonment on each count to be served concurrently. LeGrand again appealed the application of the Guidelines. The Eighth Circuit affirmed this Court's sentence, and the Supreme Court denied LeGrand's petition for writ of certiorari. United States v. LeGrand, 468 F.3d 1077 (8th Cir. 2006), cert. denied, 551 U.S. 1109 (2007).

         On February 29, 2016, LeGrand filed a pro se motion to vacate, set aside, or correct his sentence pursuant to § 2255.[1] (Pro Se Mot. to Vacate, Feb. 29, 2016, Docket No. 179.) LeGrand also filed a motion to appoint counsel on March 24, 2017. (Pro Se Mot. to Appoint Counsel, Mar. 24, 2017, Docket No. 185.)

         ANALYSIS

         I. MOTION TO VACATE

         Section 2255 allows a federal prisoner a limited opportunity to seek post-conviction relief on the grounds that “the sentence was imposed in 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.” 28 U.S.C. § 2255(a). “Relief under . . . § 2255 is reserved for transgressions of constitutional rights and for narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

         The United States argues that LeGrand's current challenge that his attempted third-degree burglary conviction was not a “crime of violence” has already been “raised and decided on direct appeal, ” and, as such, “cannot ordinarily be relitigated in a collateral proceeding based on . . . § 2255.” United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001).

         LeGrand previously appealed the Court's finding that he was a career offender under U.S.S.G. § 4B1.1, arguing that his prior Minnesota conviction for attempted third-degree burglary was not a “crime of violence.” LeGrand, 468 F.3d at 1081. The Eighth Circuit rejected LeGrand's challenge, holding that attempted third-degree burglary qualified as generic burglary under Taylor v. United States, 495 U.S. 575 (1990), and noting that, in the Eighth Circuit, generic burglaries qualify as “crimes of violence” under “the ‘otherwise involves' provision of [U.S.S.G.] § 4B1.2(a)(2).” LeGrand, 468 F.3d at 1081-82. Thus, the Eighth Circuit held LeGrand's attempted third-degree burglary conviction satisfied the “residual clause, ” because a generic burglary conviction “always has a ‘serious potential risk of physical injury to another'” and, thus, was a “crime of violence” under the Guidelines. Id. at 1082.

         LeGrand argues that, even though he raised the issue of whether attempted third-degree burglary was a “crime of violence” on direct appeal, the Supreme Court's decision in Johnson is an intervening change in the law that warrants collateral proceedings under § 2255. The Court is permitted under § 2255 to reconsider an issue raised on direct appeal if ...


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