United States District Court, D. Montana, Great Falls Division
ORDER DENYING MOTION AND DENYING CERTIFICATE OF
MORRIS UNITED STATES DISTRICT COURT JUDGE.
case came before the Court on Defendant/Movant Qunell's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. The Court designated Qunell a career
offender at his sentencing in 2007. See U.S.S.G.
§ 4B1.1(a)(2) (Nov. 1, 2006). He sought relief under
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015). The Supreme Court rejected a constitutional vagueness
challenge to the advisory sentencing guidelines after Qunell
filed his § 2255 motion. See Beckles v. United
States, __ U.S. __, 137 S.Ct. 886, 890 (2017). The Court
denied Qunell's § 2255 motion on October 13, 2017.
See Order (Doc. 395).
moved to alter or amend the judgment on November 3, 2017.
See Certificate and Aff. (Doc. 399 at 18). He cites
Federal Rules of Civil Procedure 59(e) and 52(b).
52(b) of the Federal Rules of Civil Procedure allows motions
to amend a judgment to alter or add findings of fact. The
Court decided Qunell's § 2255 motion on the law. The
instant motion makes a legal argument. No findings of fact
remain to alter or supplement. Rule 52(b) does not apply.
the prison mailbox rule, Qunell filed the instant motion
within the 28-day time limit for motions under Rule 59(e).
See Fed. R. Civ. P. 59(e); see also Houston v.
Lack, 487 U.S. 266, 270 (1988). Rule 59(e) does not
permit a party to “raise arguments . . . for the first
time when they could reasonably have been raised earlier in
the litigation.” Rishor v. Ferguson, 822 F.3d
482, 492 (9th Cir. 2016) (internal quotation marks and
Supreme Court issued its decision in Beckles on
March 6, 2017. A week later, Qunell's counsel moved to
defer a ruling on the § 2255 motion so that he could
obtain Qunell's consent to dismissal of the § 2255
motion. See Mot. to Defer (Doc. 387) at 2 ¶ 3.
The Court deferred its ruling and set a deadline for March
29, 2017. Qunell did not file anything. The Court denied
Qunell's § 2255 motion six and a half months later.
asserts that he made counsel aware of the new arguments that
he wanted to make “more than a month and a half prior
to the Court's October 12, 2017, denial.” Mot. to
Alter at 3. Qunell's motion was subject to denial at any
time after March 29, 2017. Qunell does not identify anything
that prevented him from making his new arguments before
August 31, 2017. Rule 59(e) applies in light of the fact that
Qunell reasonably could have filed his amended motion before
new argument in support of his original claim for relief
lacks merit even if the Court were to assume that Qunell
timely filed his motion.
claims Johnson invalidated the 1989 guidelines
amendment that incorporated the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)
(“ACCA”), into the career offender guideline. By
“invalidated, ” Qunell means the amendment ceased
to exist, as he says, “nunc pro tunc” as of 1989.
He suggests that the nonexistent provision could not be used
against him at his sentencing in 2007, even under an advisory
guideline regime, because Johnson means the
provision was invalid at its enactment “by operation of
law.” See Mot. to Alter (Doc. 399) at 4-12.
supports this argument. Johnson does not say any
guideline amendment is invalid. It does not say any residual
clause, even the one in the ACCA, no longer exists.
Johnson says that “imposing an increased
sentence under the residual clause of the [ACCA] violates the
Constitution's guarantee of due process.”
Johnson, 135 S.Ct. at 2563. Johnson
reasoned that the ACCA raises both the minimum and maximum
available punishment, see Id. at 2555, without
giving clear guidance as to when the residual clause applies
and when it does not. Id. at 2557-58. See also
Beckles, 137 S.Ct. at 892 (describing the reasoning of
the ACCA, however, the advisory Guidelines do not fix the
permissible range of sentence.” Beckles, 137
S.Ct. at 892. They “merely guide the exercise of a
court's discretion” within a range otherwise fixed
by statute. Id. “[T]he advisory Sentencing
Guidelines are not subject to a due process vagueness
challenge.” Beckles, 137 S.Ct. at 897. Stated
in more general terms, not all provisions of law are required
to meet the same standard of clarity. No reason exists to
assume that a phrase unconstitutionally vague in the ACCA