United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters United States District Judge
case comes before the Court on Defendant/Movant Brett Wade
Clouse's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Clouse is a
federal prisoner proceeding pro se.
to a plea agreement, Clouse pled guilty to a superseding
information charging him with one count of conspiracy to
possess with intent to distribute five or more grams of pure
methamphetamine, a violation of 21 U.S.C. §§ 846
and 841(a)(1), and one count of conspiracy to launder money,
a violation of 18 U.S.C. § 1956(h). See Minutes (Doc.
76); Plea Agreement (Doc. 67) at 2-4 ¶¶ 2-4;
Superseding Information (Doc. 70) at 2-3.
the advisory sentencing guidelines, Clouse's base offense
level was 36. He received a two-level increase for the money
laundering conviction, a two-level reduction to reflect a
mitigating role in the offense, another reduction of three
levels under U.S.S.G. § 2D1.1(a)(5), and another
three-level reduction for acceptance of responsibility. Based
on the plea agreement, see Plea Agreement (Doc. 67) at 7
¶ 6 para. 2, the United States moved for an additional
two-level downward variance to negate the money-laundering
enhancement. The total adjusted offense level was 28. See
Sentencing Tr. (Doc. 98) at 58:6-59:11.
had two misdemeanor convictions that were not scored in his
criminal history. See Presentence Report
¶¶ 42, 44. He also had one conviction for
misdemeanor assault under Montana law. Clouse's original
sentence was deferred on conditions, but he violated the
conditions and was sentenced to serve 365 days in jail. About
three and a half months later, he was resentenced to serve
six months in jail. This offense incurred two criminal
history points. Clouse's criminal history category was,
therefore, II. See Presentence Report ¶¶
total adjusted offense level of 28 and a criminal history
category of II, Clouse's advisory guideline range was 87
to 108 months. See Sentencing Tr. at 59:19-60:6;
Statement of Reasons (Doc. 95) at § III. With a downward
variance under 18 U.S.C. § 3553, Clouse was sentenced to
serve 63 months in prison on both counts, concurrently, to be
followed a five-year term of supervised release. See
Minutes (Doc. 93); Judgment (Doc. 94) at 2-3.
did not appeal. His conviction became final on January 28,
2017. See Gonzalez v. Thaler, 565 U.S. 134, 140
timely filed his motion under 28 U.S.C. § 2255 on
December 13, 2017. See 28 U.S.C. § 2255(f)(1);
Houston v. Lack, 487 U.S. 266, 276 (1988).
Claim and Analysis
acknowledges and addresses possible procedural obstacles to
his § 2255 motion. They need not be addressed. His claim
will be addressed on the merits.
contends that his criminal history category was wrong because
the 365-day sentence was illegal and because he served only
21 days in jail. See Mot. § 2255 (Doc. 101) at
2-3; Mem. (Doc. 103) at 2-3. Clouse also contends that he
would have been eligible for relief under the safety valve,
U.S.S.G. § 5C1.2, if his criminal history had been
calculated correctly. See Mot. § 2255 at 4.
is mistaken. U.S.S.G. § 4Al.l(a) provides that three
points are assessed "for each prior sentence of
imprisonment exceeding one year and one month." Section
4A1.1 (b) provides that two points are assessed "for
each prior sentence of imprisonment of at least sixty days
not counted in (a)."
Clouse was not sentenced to any jail time. But the revocation
of his deferred sentence resulted in a sentence of six months
in jail. Section 4A1.2(k) addresses his situation. The
six-month sentence earned two points under § 4Al.l(b)
because "[t]he term 'sentence of imprisonment'
means a sentence of incarceration and refers to the
maximum sentence imposed." U.S.S.G. §
4A1.2(b)(1). The time actually served in jail is significant
in terms of the ten- or fifteen-year period for which
criminal history is calculated, see § 4A
1.2(e), but the points earned under § 4A 1.1 depend
solely on the sentence imposed. Clouse was released early
because he "entered into a treatment plan, "
see Agreement for Release (Doc. ...