United States District Court, D. Montana, Billings Division
ORDER GRANTING § 2255 MOTION AND SETTING
P. Watters, United States District Court Judge
case comes before the Court on Defendant/Movant William Jess
Foust's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Foust is a
federal prisoner proceeding pro se. The United States filed
an answer on December 23, 2016, and Foust filed a reply on
January 30, 2017.
pled guilty to being a felon in possession of a firearm, a
violation of 18 U.S.C. § 922(g)(1). On August 13, 2015,
he was sentenced to serve 108 months in prison, to be
followed by a three-year term of supervised release. Minutes
(Doc. 36); Judgment (Doc. 37) at 2-3.
now alleges that he received ineffective assistance of
counsel at sentencing. See Mot. § 2255 (Doc.
45) at 4-5. Procedural default, see Answer (Doc. 50)
at 5-8, is not an issue when a defendant alleges ineffective
assistance, see Massaro v. United States, 538 U.S.
500, 503-04 (2000). Foust does not allege that his conviction
for burglary under California law was not a "crime of
violence." See, e.g., Answer at 8-11. He
contends instead that the conviction does not contribute to
his criminal history calculation because the sentence was
pronounced more than 15 years before he committed the instant
offense and that counsel was ineffective for failing to say
so. He is correct.
of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984). Foust
must show both that counsel's performance was
unreasonable, id. at 687-88, and that there is a
reasonable probability the total sentence would have been
less harsh if counsel had done what Foust says he should
have, id. at 694.
length of a sentence of imprisonment is the stated
maximum .... That is, criminal history points are based on
the sentence pronounced, not the length of time actually
served." Id. § 4A1.2 Application Note 2
(emphasis added). So, for instance, if a person is sentenced
to serve five years in prison but actually serves only eight
months, the sentence still exceeds a year and a day and meets
the criterion of U.S.S.G. § 4A1.1(a)(1).
"[a] sentence imposed more than fifteen years prior to
the defendant's commencement of the instant offense is
not counted unless the defendant's incarceration
extended into this fifteen-year period." U.S.S.G. §
4A1.1 Application Note 1 (emphasis added) (citing §4A
1.2(e)). Suppose a defendant faces sentencing for a federal
offense committed on January 1, 2015. If he received an
eighteen-year sentence on January 1, 1995, but served only
four years in prison, was paroled on January 1, 1999, and was
never revoked, the sentence does not count against him in the
criminal history calculation, because his incarceration on
the sentence did not extend to January 1, 2000, or beyond.
See, e.g., United States v. Dewey, 599 F.3d 1010,
1014-15 (9th Cir. 2010) (following United States v.
Romary, 246 F.3d 339, 342-44 (4th Cir. 2001) (per
curiam)); see also United States v. Semsak, 336 F.3d
1123, 1127-28 (9th Cir. 2003); United States v.
Gilchrist, 106 F.3d 297, 298-301 (9th Cir. 1997);
United States v. Latimer, 991 F.2d 1509, 1510-11
(9th Cir. 1993); United States v. Harrington, 923
F.2d 1371, 1375-76 (9th Cir. 1991).
in order to count for three points in Foust's criminal
history calculation, the California prison sentence
pronounced had to exceed thirteen months, as it did,
see U.S.S.G. § 4A 1.1 (a)(1), and some
portion of the prison sentence had to be served
within the fifteen-year period prior to Foust's
commission of the instant offense, see U.S.S.G.
pled guilty to possessing firearms on or about August 30,
2014. See Indictment (Doc. 9) at 5-7. Fifteen years
prior to that was August 30, 1999. According to the
presentence report, Foust was paroled on September 13, 1998.
He discharged his parole term without being revoked or
resentenced. He was not re-incarcerated after September 13,
1998. See Presentence Report ¶ 58. Therefore,
Foust's "incarceration" on the California
burglary and robbery conviction ended more than 15 years
before he committed the instant offense. The conviction could
not count against him.
U.S.S.G. § 2K2.1(a), the California burglary and robbery
conviction entered into determination of the base offense
level. Foust's base offense level was 20. U.S.S.G. §
2K2.1(a)(4)(A) & Application Note 1. There appears to be
no indication that Foust possessed a semiautomatic weapon or
a firearm described in 26 U.S.C. § 5845(a). Therefore,
there is at least a reasonable probability the correct base
offense level was 14. See Id. § 2K2.1(a)(6). If
that is the case, the total offense level should have been
21, not 27. In addition, the correct criminal history
category should have been II, not III. The advisory guideline
range would then have been 41 to 51 months. While a sentence
of 108 months remains available under 18 U.S.C. §
3553(a), there is at least a reasonable probability that a
sentence less than 108 months would have been imposed if the
advisory guideline range was 41 to 51 months rather than 87
to 108 months.
Court previously noted, defense counsel did good work in many
respects in this case. He avoided both an armed career
criminal designation and a career offender designation.
See Order (Doc. 47) at 1. Nonetheless, no one
realized that Foust's conviction for burglary under
California law should not count against him under the
guidelines. That was a matter of black-letter law, not a
point of strategy. It is professionally unreasonable for a
lawyer to fail to identify a misapplication of the guidelines
when the misapplication affects the defendant's sentence.
Foust is entitled to be re-sentenced under 28 U.S.C. §
certificate of appealability will be denied because no issues
were resolved adversely to Foust. See Rule 11(a),
Rules Governing § 2255 Proceedings.
in this Order or the prior proceedings determines any portion
of the guideline calculation or proceedings at a new
sentencing hearing. The new presentence report must include
all relevant information ...