SUSAN P. WATTERS, District 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).
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. § 5C1.2(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, Clouse's 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 Release" 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:
(Doc. 104 at 7).
The federal sentencing guidelines account for a defendant's criminal history by using a point system:
U.S.S.G. § 4A1.1 (Nov. 1, 2016).
Clouse's criminal history calculation depends on the length of any custodial sentence he received for misdemeanor assault. He was released to a treatment center before he had served even 30 of the 365 days imposed by Justice of the Peace Kober, but that does not alter the application of § 4A1.1(a)-(e). "[C]riminal history points are based on the sentence pronounced, not the length of time actually served." U.S.S.G. § 4A1.2 cmt. n.2. A sentence of either 365 days or six months receives two criminal history points, see U.S.S.G. § 4A1.1(b), so if Judge Jones's order is interpreted to impose a jail sentence of six months, as the United States argues, then Clouse is not entitled to relief. Clouse, however, argues that Judge Jones vacated the jail sentence and did not impose another one.
The United States contends that "[t]he Montana Supreme Court has clearly set out a procedure for correcting an illegal sentence in Montana Courts." U.S. Resp. (Doc. 110) at 3. It asserts:
U.S. Resp. at 3-4 (quoting DeShields v. State, 2006 MT 58 ¶ 11 (Morris, J.), and citing State v. White, 2008 MT 464 ¶ 25, and State v. Coluccio, 2009 MT 273 ¶ 34). Reading Judge Jones's order in light of this statement, the United States claims that vacating six months of the 365-day jail sentence was "all [Judge Jones] was permitted to do." See id. at 4.
Clouse counters that the DeShields approach is an option, not a rule. He cites cases in which the Montana Supreme Court found some provision of a sentence illegal and remanded the case to the sentencing court for resentencing. See, e.g., Am. Reply (Doc. 115) at 6 (citing State v. Heafner, 2010 MT 87 ¶ 9, and State v. Rambold, 2014 MT 116 ¶ 20).
The Court agrees with Clouse. The Montana Supreme Court does not address every illegal sentence by following DeShields, so the rationale for interpreting Judge Jones's order as if he were strictly bound to follow DeShields is not strong.
More fundamentally, although it does not say so, the United States is asking the Court to look beyond what Judge Jones' order actually says to get to what he meant to say. But, in addition to its over-reading of DeShields, there are two problems with the United States' approach. The first problem is its questionable logic. A judge who imposed a sentence in excess of a statutory maximum did not necessarily intend to impose a sentence at the statutory maximum.
The second problem poses serious practical concerns. How far should a federal sentencing court go in interpreting a state sentencing order
It is better, and far easier, to read Judge Jones's order to say what it says. "The 365-day sentence . . . for a misdemeanor assault conviction . . . exceeds the statutory maximum allowed under § 45-5-201(2), MCA, constitutes an illegal sentence, and is hereby VACATED."
The presentence report erred in stating that Clouse was "resentenced" in June 2012 to six months in jail. Justice of the Peace Kober did not impose any jail sentence other than 365 days. When Justice of the Peace Kober endorsed the "Agreement for Release" on July 30, 2012, indicating that Clouse would remain under the jurisdiction of the Justice Court "through August 27, 2012" she did not impose a new jail sentence or vacate the jail sentence she imposed on February 27, 2012, despite the fact that Clouse would be out from under the Justice Court's authority six months earlier than contemplated in the original sentence. (On July 30, 2012, Clouse was not incarcerated and hadn't been since he was released to go to treatment on March 19, 2012.)
Judge Jones, in 2018, also did not impose a jail sentence. He only stated that the statutory maximum sentence that Clouse "could have received . . . is a term of incarceration not to exceed six months." There never was an actual sentence of six months in jail imposed by either Judge Jones or Justice of the Peace Kober. There was a jail sentence of 365 days, and that sentence was vacated.
The United States correctly points out that Clouse "is still guilty of assault." U.S. Resp. at 5-6. The question here is what "sentence of imprisonment" was imposed. See U.S.S.G. § 4A1.1(a), (b). No one is saying the conviction no longer exists or that Clouse was not sentenced at all. The prior sentence will still be scored, but it will fall under § 4A1.1(c).
The United States has not argued that Johnson v. United States, 544 U.S. 295, 303 (2005), does not extend to Clouse's situation. That defense is waived. See Order (Doc. 109) at 3, 5, 6 ¶ 1; Order (Doc. 112) at 2. Clouse is entitled to relief.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Clouse's motion under 28 U.S.C. § 2255 is GRANTED as to his claim that he is entitled to be resentenced under Johnson v. United States, 544 U.S. 295 (2005). In all other respects, the Order of June 13, 2018 (Doc. 106), including its denial of a certificate of appealability, remains in effect.
2. The clerk shall vacate the judgment entered on June 13, 2018, in CV 17-163-BLG-SPW and reopen the civil file. The parties must file in the criminal case as the civil case is opened for administrative purposes only.
3. Resentencing shall be set by separate order.
4. The Probation Office shall prepare a revised presentence report reflecting in paragraph 43 that the 365 day sentence of incarceration imposed February 27, 2012 on Clouse's conviction for misdemeanor assault in Stillwater County was vacated on March 30, 2018, and make any necessary adjustments to the Offense Level Computation consistent with this order.
5. When the Court has entered an amended judgment in the criminal case, the clerk shall close the civil file by entering judgment in favor of Clouse and against the United States on his claim under Johnson v. United States, 544 U.S. 295 (2005), and in favor of the United States and against Clouse on all other claims.
Clouse had already fully discharged the sentence before he filed his postconviction petition, so Judge Jones had no occasion to decide whether to resentence Clouse or send the case back to the justice court. Or, at any rate, his order does not say anything about resentencing.
