United States District Court, D. Minnesota
R. Winter, Assistant United States Attorney, Counsel for
Petitioner, pro se.
MEMORANDUM OPINION AND ORDER
MICHAEL J. DAVIS JUDGE
matter is before the Court on Petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 [Doc. No. 471].
19, 2010, Petitioner pleaded guilty to Count 1 of the
Superseding Indictment which charged Conspiracy to Distribute
in Excess of 50 Grams of Actual Methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 and
Count 5 of the Superseding Indictment which charged
Possession of a Firearm During a Drug Trafficking Crime in
violation of 18 U.S.C. § 924(c)(1)(A)(ii).
United States Probation Office prepared a Presentence
Investigation Report ("PSR") advising that
Petitioner was a Career Offender as set forth in the
Sentencing Guidelines because he was at least 18 years old at
the time he committed the instant offense, the crime of
conviction was a controlled substances offense and because
Petitioner had at least two prior felony convictions
involving crimes of violence, namely a 1995 conviction for
Second Degree Assault, and a 2007 conviction for Terroristic
Threats. Because he was a Career Offender, § 4Bl.l(a)
and (b) provided that the base offense level was 34 and the
criminal history category was VI.
Court adopted the guideline calculations set forth in the
PSR, which determined the applicable range of imprisonment
for Count 1 to be 262 to 327 months. The sentence for Count 5
was a statutory mandatory sentence of seven years to be
imposed consecutively to Count 1.
January 4, 2011, Petitioner was sentenced to a term of
imprisonment on Count 1 for 240 months and on Count 5 for 84
months, to be served consecutively for a total term of
imprisonment of 324 months. His sentence was affirmed on
appeal. United States v. Sherman Lee, 441 Fed.Appx.
401 (8th Cir. 2011).
13, 2016, Petitioner filed this petition under § 2255 to
vacate, set aside or correct his sentence. Petitioner argues
that pursuant to Johnson v. United States, 135 S.Ct.
2551 (2015), his prior conviction for terroristic threats no
longer falls within the definition of "crime of
violence" set forth in the Sentencing Guidelines. He
thus argues that he should not have been sentenced as a
Career Offender under the Guidelines and asks that he be
further argues that his conviction for possession of a
firearm under 18 U.S.C. § 924(c) is invalid because the
underlying conviction for conspiracy to distribute and
possess with intent to distribute methamphetamine does not
qualify as a violent crime for purposes of §
government filed its opposition brief on March 17, 2017,
asserting that Petitioner's first claim for relief is
precluded in light of the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017), and
that his second claim for relief is without merit. On June
20, 2017, Petitioner filed a request to voluntarily withdraw
his petition in light of the Beckles decision. The
Court took Petitioner's request under advisement, and
ordered Petitioner to file a reply brief on or before
September 5, 2017. Petitioner again requested the Court allow
him to voluntarily withdraw his petition, stating
"enlight [sp] of the decision on Beckles I know I'm
not eligible for relief. Therefore, I am requesting this
Court; respectfully, to dismiss the 2255 motion to
vacate." (Doc. No. 489.)
Motion for ...