United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS, UNITED STATES DISTRICT COURT
case comes before the Court on Defendant/Movant Sean
Gilmore's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Gilmore is a
federal prisoner proceeding pro se.
reviewing the motion, the Court has consulted the recording
of Gilmore's change of plea hearing. Pursuant to 28
U.S.C. § 753(f), the United States will be required to
order the transcript for the Court's file and for
was convicted of one count of possessing 50 or more grams of
methamphetamine with intent to distribute it, a violation of
21 U.S.C. § 841(a)(1); and one count of possessing a
firearm in furtherance of a drug trafficking crime, a
violation of 18 U.S.C. § 924(c). See Indictment
(Doc. 10) at 3 (Count 2), 5 (Count 6); Plea Agreement (Doc.
103) at 2 ¶ 2, 3-4 ¶ 4. On July 12, 2018, he was
sentenced to serve 84 months on Count 2 and a consecutive 60
months on Count 6, for a total prison term of 144 months.
When he is released, he will serve a five-year term of
supervised release. See Judgment (Doc. 144) at 2-3.
timely filed a motion under 28 U.S.C. § 2255 on Oct. 31,
2018. See Mot. § 2255 (Doc. 149) at 6; 28
U.S.C. § 2255(f)(1). He alleges that the United States
"could not establish that the firearm in question was
used in a drug trafficking offense," id. at 2,
and that 18 U.S.C. § 924(c) is unconstitutional,
id. at 4.
waived his right to file a § 2255 motion, excepting
claims of ineffective assistance of counsel. See
Plea Agreement (Doc. 103) at 8 ¶ 8(a) para. 2. But it is
more efficient to address his claims on the merits.
United States was not required to prove that Gilmore actually
used the firearm while trafficking in drugs. When he pled
guilty to Count 6, he admitted that agents found a loaded
pistol under his desk, available to cover the door, when they
searched his shop, where he was keeping methamphetamine.
These facts demonstrated the firearm was proximate to
Gilmore's meth, readily accessible to him, and
strategically placed where it was likely to be needed, and
that is all that is necessary to show he possessed the
firearm "in furtherance of drug trafficking. See
United States v. Thongsy, 577 F.3d 1036, 1041 (9th Cir.
also alludes to Johnson v. United States, ___ U.S.
___, 135 S.Ct. 2551 (2015), to argue that § 924(c)
relies on an unconstitutionally vague definition of the
phrase "crime of violence." See 18 U.S.C.
§ 924(c)(3); Mot. § 2255 at 2-4. He acknowledges
that the predicate offense for application of § 924(c)
in his case was a drug trafficking offense defined in §
924(c)(2), not a crime of violence defined in §
924(c)(3). He asserts that a constitutional defect in one
portion of the statute should make the statute
unconstitutional "across the board." Mot. §
2255 at 3-4. But the general rule is to remedy the
constitutional defect, not to strike an entire statute.
See, e.g., United States v. Booker, 543 U.S. 220,
246 (2005) ("We seek to determine what 'Congress
would have intended' in light of the Court's
constitutional holding."). The definitions of a
"crime of violence" and of a "drug trafficking
offense" are distinct from one another. Section
924(c)(4) does not use any of the elements of §
924(c)(3). Therefore, even assuming that § 924(c)(3) is
unconstitutionally vague-a point that need not be decided
here-there is no reason to suppose that defect would
undermine the validity of § 924(c)(4). And there is no
reason to suppose that Congress would intend to eliminate any
penalty for possessing a firearm in furtherance of drug
trafficking if a portion of its definition of a "crime
of violence" proved unconstitutionally vague.
Gilmore's claims are denied for lack of merit. A
certificate of appealability is not warranted, because
reasonable jurists would find no basis to hold §
924(c)(4) unconstitutionally vague and no basis to believe
Gilmore did not possess a firearm in furtherance of drug
IT IS HEREBY ORDERED:
1. Pursuant to 28 U.S.C. § 753(f), the Court CERTIFIES
that the transcript of the change of plea hearing, held on
February 20, 2018, is required to decide an issue presented
2. The United States shall immediately order the transcript
of that hearing for the Court's file, with copies to be
delivered to Sean Patrick Gilmore, BOP # 07707-046, FCI
Englewood, Federal Correctional Institution, 9595 West Quincy
Ave., Littleton, CO 80123.
3. Gilmore's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255 (Doc. 149) is DENIED.
4. A certificate of appealability is DENIED. The Clerk of
Court shall immediately process the appeal if Gilmore ...