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United States v. Manuel

United States District Court, D. Arizona

March 7, 2017

United States of America, Plaintiff,
v.
Keith Patrick Manuel, Defendant/Movant. No. CV 16-02165-PHX-DGC (MHB)

          ORDER

          David G. Campbell United States District Judge

         On July 1, 2016, Movant Keith Patrick Manuel, who is confined in the U.S. Penitentiary in Tucson, Arizona, filed a pro se “Motion for Time Reduction by an Inmate in Federal Custody, (28 U.S.C. § 2255).” In an August 22, 2016 Order, the Court denied the Motion because it was not filed on the court-approved form and gave Movant 30 days to file an amended § 2255 motion on a court-approved form (Doc. 3).

         On September 23, 2016, Movant filed an Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 4). Movant also filed a motion for a ten-day extension of time to file a brief in support of the Amended § 2255 Motion (Doc. 5). The Court will summarily dismiss the Amended § 2255 Motion and deny the motion for an extension as moot.

         I. Procedural History

         Pursuant to a plea agreement, Movant pleaded guilty to abusive sexual contact, occurring on an Indian Reservation, in violation of 18 U.S.C. §§ 1153 and 2244(a)(5). The plea agreement provided for a sentencing range of 10 to 15 years. In addition, under the plea agreement, the parties agreed that a U.S. Sentencing Guidelines § 2A3.4(c)(1) cross-reference would apply. On March 27, 2013, the Court sentenced Movant to a 180-month term of imprisonment followed by lifetime supervised release.

         III. Amended § 2255 Motion

         Movant alleges two grounds for relief. Generally, Movant states that he seeks relief pursuant to United States v. Johnson, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). (Doc. 4 at 9.)

         In Ground One, he alleges that his conviction and sentence “under the violent felony statute[s] governing sex crimes, etc., is unconstitutionally vag[u]e and violates due process.” (Doc. 4 at 5.) He argues that 18 U.S.C. §§ 1153 and 2244(a)(5), rely “on the provisions of the residual clause language of 18 U.S.C. § 16(b) to classify as a predicate violent felony” and are unconstitutional. He claims that his sentencing statute, which he identifies as 18 U.S.C. § 25, relies on § 16(b)'s residual clause and imposes multiple punishments under the U.S. Sentencing Guidelines. He asserts that his “career enhancement” relies on § 16(b)'s residual clause and that residual clause language was used to classify his sentence and conviction as a violent felony, which thereby violated due process.

         In Ground Two, Movant alleges that his tribal misdemeanors were unlawfully used as career offender enhancements under U.S. Sentencing Guidelines § 4B1.1, of which Movant contends that he is actually innocent.

         IV. Summary Dismissal

         A district court must summarily dismiss a § 2255 application “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. When this standard is satisfied, neither a hearing nor a response from the government is required. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). In this case, the record shows that summary dismissal is warranted.

         V. Discussion

         A. Johnson

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. ยง 924(e)(2)(B)(ii), is unconstitutionally vague and therefore violates due ...


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