United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING THE UNITED
STATES'  MOTION TO DISMISS AND DENYING
DEFENDANT'S  MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C.
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is the United States of America's Motion 
to Dismiss, the Motion  to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, filed by Defendant
Benjamin Joseph Casper, III (“Defendant” or
“Casper”) pursuant to 28 U.S.C. § 2255.
Casper has not responded to the Government's Motion, and
the time for doing so has passed. After due consideration of
the issues presented, the record, and relevant legal
authority, the Court is of the opinion that the
Government's Motion  to Dismiss should be granted and
that Casper's § 2255 Motion should be denied.
FACTS AND PROCEDURAL HISTORY
2, 2012, Casper pleaded guilty to Count 1 of a single-count
Indictment , see July 2, 2012, Minute Entry,
which charged that
[o]n or about September 6, 2011, in Harrison County, in the
Southern Division of the Southern District of Mississippi,
the defendant, BENJAMIN JOSEPH CASPER III, having been
convicted previously of a felony, that is, a crime which is
punishable by imprisonment for a term exceeding one year, did
knowingly possess a firearm, which had previously been
shipped and transported in and affecting commerce.
In violation of Sections 922(g)(1) and 924(a)(2), Title 18,
United States Code.
Indictment  at 1.
guilty plea was made pursuant to a Plea Agreement  with
the Government, which provided in relevant part that Allen
expressly waives the following rights:
a. the right to appeal the conviction and sentence imposed in
this case, or the manner in which that sentence was imposed,
on the grounds set forth in Title 18, United States Code,
Section 3742, or on any ground whatsoever, and
b. the right to contest the conviction and sentence or the
manner in which the sentence was imposed in any
post-conviction proceeding, including but not limited to a
motion brought under Title 28, United States Code, Section
2255 . . . .
Plea Agreement  at 4. At the plea hearing and in the Plea
Agreement , Casper and his attorney declared that the
terms of the Plea Agreement were read by or to Casper,
explained to Casper by his attorney, understood by Casper,
voluntarily accepted by Casper, and agreed to and accepted by
Casper. Id. at 6.
assist the Court in sentencing, the United States Probation
Office prepared a Presentence Investigation Report
(“PSR”). See PSR  (filed under
seal). Because Casper had previously been convicted in the
Circuit Court of Harrison County, Mississippi, on November 9,
2006, for possession with intent to distribute a controlled
substance, and again on April 6, 2009, for a separate offense
of possession of a controlled substance with intent to
distribute, the Probation Office determined that Casper's
base offense level under United States Sentencing Guideline
§ 2K2.1(a)(2) was 24. Because Casper possessed a firearm
in connection with another felony offense, namely that Casper
was in possession of a felony amount of marijuana which he
and his girlfriend intended to distribute, the PSR added a
four-level adjustment for this specific offense
characteristic. See U.S. Sentencing Guidelines
Manual § 2K2.1(b)(6)(B). After a two-level adjustment
for obstruction of justice, Casper's total offense level
counsel raised several objections to the PSR, including one
to the four-level enhancement Defendant received under §
2K2.1(b)(6)(B). See Def.'s Objs. [28-2] (filed
under seal). At the sentencing hearing, the Government
presented evidence of Casper's having possessed a handgun
and more than 30 grams of marijuana, and of his intent to
sell the marijuana. The Court overruled Casper's
objection. See Miss. Code. Ann. §
upon a total offense level of 30 and a criminal history
category of V, the imprisonment range under the Guidelines
for Casper was 151 months to 188 months. However, the
statutorily authorized maximum sentence was 10 years, which
was less than the applicable guideline range, making the
guideline term of imprisonment 120 months. See U.S.
Sentencing Guidelines Manual § 5G1.1(a). Casper was
sentenced on September 27, 2012, to a term of imprisonment of
120 months, and the Court entered Judgment  on October 1,
2012. J.  at 1-2. Casper did not file a direct appeal.
16, 2016, Casper filed a Motion  pursuant to 28 U.S.C.
§ 2255.Casper argues that under Welch v.
United States, 136 S.Ct. 1257 (2016), and Johnson v.
United States, 135 S.Ct. 2551 (2015), his prior offenses
no longer constitute crimes of violence under United States
Sentencing Guideline §§ 2K2.1(a)(2) and
2K2.1(b)(6)(B). Mot.  at 4; Mem.  at 2-14. Casper
refers to charges of domestic violence and possession of 13
grams of marijuana, which he claims is a misdemeanor under 21
U.S.C. § 844. Mem.  at 2. Casper asks the Court to
vacate his sentence and judgment and to resentence him.
Id. at 14-15.
August 1, 2016, the Government filed a Motion to Dismiss 
seeking to enforce the waivers contained in Casper's Plea
Agreement. See Mot.  at 2-3. The Government
maintains that Casper's § 2255 Motion must be
dismissed because Casper voluntarily waived his right to
collaterally attack his sentence in such a motion,
id. at 3, and that Casper's Motion lacks merit
inasmuch as Johnson does not control here ...