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United States v. Clouse

United States District Court, D. Montana, Billings Division

December 10, 2018

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

          ORDER GRANTING § 2255 MOTION AND SETTING RESENTENCING HEARING

          SUSAN P. WATTERS UNITED STATES DISTRICT COURT JUDGE.

         On June 13, 2018, the Court denied Defendant/Movant Brett Wade Clouse's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. A certificate of appealability was also denied. Clouse, a federal prisoner proceeding pro se, successfully sought reconsideration. See Order (Doc. 112) at 2.

         The Court stands by its Order of June 13, 2018 (Doc. 106), but reconsideration is appropriate to address one more claim the Court did not previously perceive. The United States has filed an answer to that claim (Doc. 110). Clouse, represented by new counsel, filed an amended reply (Doc. 115).

         I. Background

         At issue is a conviction for misdemeanor assault in Stillwater County's Justice Court. That conviction earned Clouse two criminal history points at his federal sentencing hearing. See Presentence Report ¶ 43. The conviction is the reason he is in criminal history category II rather than I. It also made him ineligible for relief under the safety valve provision of the Sentencing Guidelines. See U.S.S.G. § 5C 1.2(a)(1).

         Clouse committed the misdemeanor assault on January 28, 2011. His sentence was conditionally deferred, but he violated the conditions. On February 27, 2012, Justice of the Peace Kober sentenced him to serve 365 days in jail (Doc. 101-2). A short while later, she ordered that he be released on March 19, 2012, to a treatment facility (Doc. 101-3).

         In June 2012, Clouse9s attorney moved to amend the sentence because the statutory maximum was six months (Doc. 101-4). The Justice Court did not rule on that motion. On July 30, 2012, it endorsed an "Agreement for Release95 acknowledging that Clouse's "permanent record will reflect that he has been convicted of misdemeanor crimes" and that he would remain under the Justice Court's jurisdiction "through August 27, 2012" (Doc. 101-5). (A term of six months from the original sentencing date of February 27, 2012.) Clouse completed all the remaining requirements and discharged the sentence.

         A little more than three years later, Clouse was indicted in this Court. He pled guilty to two charges involving drug trafficking and money laundering. He was sentenced on January 11, 2017. In describing the misdemeanor assault conviction, the presentence report stated that Clouse was "resentenced" on June 11, 2012, to "6 months jail." See Presentence Report ¶ 43. June 11, 2012, was the date the Justice Court received Clouse's attorney's motion to amend the sentence. Neither party objected at the federal sentencing hearing to the presentence report's characterization of the sentence, but, since then, neither party has submitted a document indicating the Justice Court ever "resentenced" Clouse.

         Some time after Clouse's sentencing in this Court, he filed a petition for postconviction relief in the state court. Among other things, he challenged the legality of the 365-day jail sentence imposed by Justice of the Peace Kober. On March 30, 2018, District Judge Blair Jones found in Clouse's favor on that claim and vacated the 365-day jail sentence. Judge Jones said:

(2) The 3 65-day sentence imposed upon Brett Wade Clouse for a misdemeanor assault conviction in Stillwater County cause number TK-2011-155 exceeds the statutory maximum allowed under § 45-5-201(2), MCA, constitutes an illegal sentence, and is hereby VACATED.
(3) The record is corrected to reflect that the statutory maximum sentence Brett Wade Clouse could have received for a misdemeanor assault conviction in Stillwater County Justice Court cause number TK-2011-155, is a term of incarceration not to exceed six months pursuant to § 45-5-201(2), MCA. This assault conviction is classified a MISDEMEANOR offense for calculating any additional period of federal incarceration.

(Doc. 104 at 7).

         II. Analysis

         The federal sentencing guidelines account for a defendant's criminal ...


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