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United States v. Clouse

United States District Court, D. Montana, Billings Division

June 13, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BRETT WADE CLOUSE, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Judge

         This 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.

         I. Background

         Pursuant 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.

         Under 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.

         Clouse 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 ¶¶ 43, 46.

         With a 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.

         Clouse did not appeal. His conviction became final on January 28, 2017. See Gonzalez v. Thaler, 565 U.S. 134, 140 (2012).

         Clouse 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).

         II. Claim and Analysis

         Clouse acknowledges and addresses possible procedural obstacles to his § 2255 motion. They need not be addressed. His claim will be addressed on the merits.

         Clouse 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.

         Clouse 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)."

         Initially, 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. ...


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