United States District Court, D. South Dakota, Western Division
JEFFREY J. GRIMES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
JEFFREY L. VIKEN CHIEF JUDGE.
Jeffrey Grimes, appearing pro se, filed a motion
(Docket 1) pursuant to 28 U.S.C. § 2255 (“2255
Motion”) to vacate or set aside his criminal conviction
in United States v. Jeffrey J. Grimes, CR-11-50029
(D.S.D. 2011) (“Grimes
I”). In this 2255 Motion (“Grimes
III”), Mr. Grimes asks the court to vacate his
sentence and conduct a new sentencing hearing consistent with
the holding of Johnson v. United States, ___
U.S.___, 135 S.Ct. 2551 (2015). (Docket 2).
Fulton, the Federal Public Defender for the Districts of
South Dakota and North Dakota, filed a motion on Mr.
Grimes' behalf to hold the current 2255 Motion in
abeyance as the Supreme Court had granted a writ of
certiorari in a case which would resolve the issues pending
in this case. (Docket 7 at p. 1) (referencing Beckles v.
United States, No. 15-8544, 2016 WL 1029080 ( S.Ct. June
27, 2016)). The court granted a stay pending resolution of
Beckles. (Docket 8).
the Supreme Court's decision in Beckles, ___
U.S.___, 137 S.Ct. 886 (March 6, 2017), Federal Public
Defender Fulton filed a motion for voluntary dismissal of Mr.
Grimes' 2255 Motion pursuant to Fed.R.Civ.P. 41(a)(1)(i).
(Docket 9). On the same day, Mr. Grimes filed a pro
se motion asking the court to appoint counsel to permit
him to pursue his 2255 Motion. (Docket 10).
Grimes I, Mr. Grimes was convicted of all 19 counts
of a superseding indictment. (CR-11-50029, Docket 64). The
court sentenced Mr. Grimes to 24 months of imprisonment on
counts 1-3,  to run concurrent with each other; 24
months of imprisonment on counts 4-17,  to run concurrent
with each other, but consecutive to the sentence imposed on
counts 1-3; 120 months of imprisonment on count
to run consecutive to all other sentences imposed; and 120
months of imprisonment on count 19 to run consecutive to all
other sentences imposed. Id., Docket 92 at p. 2. The
total term of imprisonment imposed was 288 months, or 24
appeal to the United States Court of Appeals for the Eighth
Circuit, the court held that counts 12-17 were multiplicitous
and should have been charged as a single count. United
States v. Grimes, 702 F.3d 460, 469 (8th Cir. 2012). The
Eighth Circuit did not remand for resentencing as each of the
sentences for counts 12-17 were to run concurrent with each
Johnson, the Supreme Court held section
924(e)(2)(b), (the “residual clause”) of the
Armed Career Criminal Act of 1984 (“ACCA”), was
vague and violated the due process clause. “[I]mposing
an increased sentence under the residual clause of the Armed
C areer Criminal Act violates the Constitution's
guarantee of due process.” Johnson, 135 S.Ct.
at 2563. The decision in Johnson did “not call
into question application of the [ACCA] to the four
enumerated offenses, or the remainder of the Act's
definition of a violent felony.” Id.
Grimes was not sentenced under the residual clause of the
ACCA. See id., 135 S.Ct. at 2555 (citing 18 U.S.C.
§ 924(e)(2)(B)) (“Under the Armed Career Criminal
Act of 1984, a defendant convicted of being a felon in
possession of a firearm faces more severe punishment if he
has three or more previous convictions for a ‘violent
felony, ' a term defined to include any felony that
‘involves conduct that presents a serious potential
risk of physical injury to another.' ”). Mr. Grimes
was not convicted of any firearm offense. The ACCA does not
apply to Mr. Grimes' crimes of conviction. Mr.
Grimes' 2255 Motion fails to state a Johnson
Beckles, the Supreme Court held the United States
Sentencing Guidelines, including § 4B1.2(a)'s
residual clause, were not subject to vagueness challenges
under the Due Process Clause. Beckles, ___ U.S.___,
137 S.Ct. 886 (March 6, 2017). “Unlike the ACCA, . . .
the advisory Guidelines do not fix the permissible range of
sentences. To the contrary, they merely guide the exercise of
a court's discretion in choosing an appropriate sentence
within the statutory range. Accordingly, the Guidelines are
not subject to a vagueness challenge under the Due Process
Grimes' presentence investigative report
(“PSR”) did include consideration of U.S.S.G.
§ 4B1.1. (PSR at p. 13 ¶ 63); see also
id. at p. 13 n.4. Because “Mr. Grimes had two
prior felony convictions for crimes of violence-kidnapping
and aggravated stalking-and . . . [a] current conviction . .
. for mailing a threatening communication, which was also a
crime of violence . . . Mr. Grimes was categorized as a
career offender and placed in criminal history category
VI.” (Civ. 14-5030, Docket 30 at pp. 13) (referencing
U.S.S.G. § 4B1.1). Section 4B1.1 provides:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.
U.S.S.G. §4B1.1(a). The minimum criminal history for a
career offender is category VI. Id. at §
sentencing the court concluded an upward departure from the
advisory U.S.S.G. range of 140-175 months was appropriate
because of the number of victims and the duration of Mr.
Grimes' criminal conduct over the course of almost four
years. (CR-11-50029, Docket 122 at pp. 257:5 and
279:15-281:14). The court also departed upward because the
Guidelines did not adequately protect the public from future
criminal conduct by Mr. Grimes. Id. at pp.
281:23-283:2. The court made it clear that if the career
offender provisions of the Guidelines did not apply or if the
court did not depart upward, the sentence would be the same
under 18 U.S.C. § 3553(a). Id. at pp. 286:2-8.
With these rulings, the court imposed a sentence totaling 24
years. Id. at p. 287:6-7.
Grimes does not have a valid Beckles claim. The
Guidelines only suggest a range of months for sentencing
purposes. The court chose to upward depart under the
Guidelines but also made clear the ...