United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
SAM E. HADDON, District Judge.
On October 21, 2013, Defendant/Movant Lufborough moved to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Lufborough is a federal prisoner proceeding pro se.
A § 2255 motion is subject to preliminary review to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b) of the Rules Governing § 2255 Proceedings. Although a § 2255 motion is typically assigned to the judge who conducted sentencing or trial, United States District Judge Jack D. Shanstrom presided over Lufborough's case. Judge Shanstrom has since retired.
The record of the case shows that Lufborough was convicted of being a felon in possession of firearms, a violation of 18 U.S.C. § 922(g)(1). On December 3, 2012, he was sentenced to serve 63 months in prison, to be followed by a three-year term of supervised release. The federal sentence was imposed to run consecutively to a state sentence. Minutes (.Doc. 28); Judgment (Doc. 29) at 2-3.
In reviewing Lufborough's motion, the Court has consulted the reporter's rough transcripts of the change of plea hearing and the sentencing hearing. The United States will be required to order those transcripts to complete the record.
I. Claims and Analysis
The § 2255 motion asserts two claims. One more is raised in a supporting memorandum.
A. Descamps Claim
Lufborough asserts, relying on Descamps v. United States, ___ U.S. ___ 133 S.Ct. 2276, 2282 (2013), that criminal endangerment, as defined in Montana law, no longer qualifies as a "crime of violence" under U.S.S.G. § 2K2.1(a)(4)(A). Judge Shanstrom found that criminal endangerment was a crime of violence. The base offense level was fixed at 20 rather than 14. compare Presentence Report (Doc. 29) (under seal) ¶ 21; U.S.S.G. § 2K2.1(a)(4)(A) with id. § 2K2.1(a)(6)(A).
Lufborough is mistaken that criminal endangerment no longer qualifies. A "crime of violence, " for purposes of § 2K2.1, means:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious ...