United States District Court, D. Montana, Billings Division
ORDER GRANTING § 2255 MOTION AND SETTING
P. WATTERS UNITED STATES DISTRICT COURT JUDGE.
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.
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).
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).
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).
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.
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
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
(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
(Doc. 104 at 7).
federal sentencing guidelines account for a defendant's