United States District Court, D. Minnesota
PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE
convicted defendant Timothy Jerome Bailey of possessing a
firearm as a felon. ECF No. 78. At sentencing, the Court
calculated an advisory sentencing range of 100 to 120 months
based in part on the finding that Bailey had at least two
prior felony convictions for crimes of violence. This had the
effect of raising his base-offense level to 24. See
ECF No. 111 at 5:12-14; U.S.S.G. § 2K2.1(a)(2).
Court sentenced Bailey to 120 months in prison, the top of
the guidelines range and the statutory maximum. ECF No. 93.
In describing the reasons for its sentence, the Court cited a
large number of aggravating factors, including that Bailey
had fled from a traffic stop and defied the orders of a
police officer to stop running; Bailey had dropped his gun in
a residential backyard where it was found by two small
children; Bailey had demonstrated no remorse for his crime
and instead had expressed contempt for the grandfather of the
children, who had alerted police to Bailey's gun;
Bailey's extensive and violent criminal history, which
put him in criminal-history category VI with points to spare;
the fact that Bailey had committed his crime within a year
after being released from prison and while on supervised
release; Baileyʹs numerous infractions while in prison,
while on supervised release, and even while in jail awaiting
sentencing in this case; and the fact that Bailey had no real
job history, but instead had made his living by stealing,
selling drugs, and taking money from his mother. ECF No. 111
United States Court of Appeals for the Eighth Circuit
affirmed Bailey's conviction on direct appeal. ECF Nos.
117-18. Bailey has now filed a motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. Bailey
raises two claims: a claim that his prior convictions do not
qualify as crimes of violence and a claim that his trial
counsel was ineffective in failing to raise this
issue. The Court will address each claim in turn.
CRIMES OF VIOLENCE
first claim is that the Court incorrectly calculated his
guidelines range when he was sentenced. This claim, however,
is not cognizable under § 2255.
2255 does not provide a remedy for “all claimed errors
in conviction and sentencing.” Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc)
(quoting United States v. Addonizio, 442 U.S. 178,
185 (1979)). Rather, its text allows federal prisoners to
challenge a sentence that “was imposed in violation of
the Constitution or laws of the United States, or that . . .
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). This language “provides a remedy for
jurisdictional and constitutional errors” that would
“inherently result in a complete miscarriage of
justice.” Sun Bear, 644 F.3d at 704 (citations
omitted). But “ordinary questions of guideline
interpretation” generally “may not be
re-litigated under § 2255, ” as long as the
defendant's sentence does not “exceed the
statutory maximum for the offense of conviction.”
Id. at 704-05 (citations omitted).
sentence of 120 months did not exceed the statutory maximum
of 10 years for his offense. See 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Therefore, to the extent
that his § 2255 motion argues that the Court erred in
calculating his guidelines range, this claim is not
cognizable under § 2255.
INEFFECTIVE ASSISTANCE OF COUNSEL
second claim fares no better. To succeed on this claim,
Bailey must show “that his lawyerʹs performance
fell below the minimum standards of professional competence
(deficient performance) and that there is a reasonable
probability that the result of the proceedings would have
been different if his lawyer had performed competently
(prejudice).” Hamberg v. United States, 675
F.3d 1170, 1172 (8th Cir. 2012) (citation omitted). But a
“failure to anticipate a change in the law will not
establish that counsel performed below professional
standards.” Id. at 1173 (citation omitted). A
lawyer cannot be deemed ineffective for “fail[ing] to
object to the correct application of settled law within our
what happened here. Bailey was sentenced on November 5, 2015.
At that time, he had two felony burglary
convictions—one for first-degree burglary in violation
of Minn. Stat. § 609.582, subd. 1, and one for
third-degree burglary in violation of Minn. Stat. §
609.582, subd. 3. And Eighth Circuit case law was clear that
third-degree burglary under Minnesota law was a “crime
of violence” for guidelines purposes. See United
States v. LeGrand, 468 F.3d 1077, 1081-82 (8th Cir.
2006); United States v. Mohr, 407 F.3d 898, 900-02
(8th Cir. 2005). One month after Bailey was sentenced, the
Eighth Circuit also held that Minnesota's first-degree
burglary statute was a “crime of violence” for
guidelines purposes. See United States v. Mohamed,
623 F.App'x 839, 840 (8th Cir. 2015). Thus, when Bailey
was sentenced, his burglary convictions were crimes of
violence for guidelines purposes.
these reasons, Bailey's counsel was not ineffective for
“fail[ing] to object to the correct application of
[then-]settled law.” Hamberg, 675 F.3d at
1173. Had Bailey's counsel made the objections that
Bailey says he should have made, the Court would have
overruled those objections, calculated the same guidelines
range, and imposed the same sentence.
Based on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
1. Defendant Timothy Jerome Bailey's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.