United States District Court, N.D. Mississippi, Delta Division
SHARION AYCOCK U.S. DISTRICT JUDGE
matter comes before the court on the motion of James Allen
Morris to modify his sentence pursuant to 8 U.S.C.A. §
3582(c)(2) and Amendment 782 to the U.S. Sentencing
Guidelines, the amendment to that motion, and his
“Motion to Correct PSR Information.” ECF docs
227, 228, and 229. These matters are ripe for resolution.
and Procedural Posture
was charged in a superseding indictment with possession of
more than five (5) grams of crack cocaine with intent to
distribute (Count I); possession of heroin (Count II);
possession of cocaine (Count III), and two (2) counts of
possession of a firearm by a convicted felon (Counts IV and
V). ECF doc. 24. On December 4, 2002, Morris pleaded guilty
to Counts I and IV of the superseding indictment. Pursuant to
his plea, Morris was sentenced, as a career offender, to
serve a term of 230 months on Count I and 120 months on Count
IV, to be served concurrently. ECF doc. 64. Counts II, III,
and V of the superseding indictment and all counts of the
original indictment were dismissed. Id. On appeal,
the Fifth Circuit affirmed Morris' conviction and
sentence. ECF doc. 69.
April 16, 2004, Morris filed a motion to vacate his sentence
pursuant to 28 U.S.C.A. §2255. ECF doc. 74. Morris'
petition was denied; however, his “claim regarding the
amount of crack cocaine used to compute his sentence [was]
preserved for further briefing.” ECF doc. 83. Following
further briefing, Morris' petition was denied. ECF doc.
109. Morris then filed a motion for sentence reduction
pursuant to 18 U.S.C.A. §3582(c)(2), which was denied.
ECF doc. 167.
29, 2013, Morris filed a second pro se motion to
vacate his sentence pursuant to 28 U.S.C.A. §2255. ECF
doc. 178. Because this petition was successive, Morris was
informed the he was required to first seek permission from
the Fifth Circuit to proceed with his §2255 petition.
ECF doc. 182. Morris was denied permission to proceed with a
successive petition. ECF doc. 189.
14, 2014, Morris filed a motion to correct his pre-sentence
report pursuant to F.R.Cr.P. 36. ECF doc. 208. That motion
was denied. ECF doc. 210. Morris appealed that denial. ECF
doc. 213. That appeal was dismissed as frivolous and Morris
was warned that future frivolous filings would result in
sanctions. ECF doc. 218.
February 2, 2016, Morris filed another pro se
§2255 petition seeking relief pursuant to Johnson v.
United States, 135 S.Ct. 2551 (2015). ECF doc. 221.The
Fifth Circuit denied Morris permission to proceed with this
second successive §2255 petition. ECF doc. 224. On June
24, 2016, Morris, through counsel, filed a successive
§2255 petition raising his Johnson argument
“as a protective filing to ensure that he has met the
deadline in the event that the Fifth Circuit's denial of
his motion for authorization to file a successive § 2255
motion is later overturned.” ECF doc. 225, pg. 4.
Morris filed a motion seeking to modify his sentence pursuant
to 18 U.S.C.A. §3582(c)(2) and Amendment 782 to the U.S.
Sentencing Guidelines. ECF doc. 227. Morris also filed a
motion to amend the motion to modify his sentence. ECF doc.
228. In support of his motion and amendment, Morris asserts
that, pursuant to Johnson, supra, he can no
longer be considered a career criminal and, therefore, is
entitled to a two (2) point reduction under the Guidelines.
Morris has also filed a “Motion to Correct PSR
Information, ” alleging that the pre-sentence report
prepared in his case contains inaccurate information. ECF
Court Lacks Jurisdiction to Consider Morris' Motion to
Reduce his Sentence
has filed a pleading entitled “Motion for Modification
of Sentence, ” which states he is filing pursuant to 18
U.S.C.A. §3582(c)(2) and Amendment 782 to the U.S.
Sentencing Guidelines. ECF doc. 227. However, in his motion
Morris simply raises the same Johnson arguments that
were set forth in his second successive §2255 petition
(ECF docs. 221 and 225). Specifically, Morris contends that
he cannot be considered a “career offender”
following the Johnson ruling. Further, in his motion
to amend, Morris again cites to Johnson, supra, and
challenges his status as a career offender. ECF doc. 228. As
noted in this Court's earlier ruling, because the Fifth
Circuit denied Morris permission to proceed with a successive
§2255 petition, this Court lacks jurisdiction to
consider his Johnson arguments. ECF doc. 231.
Motion to Correct his Pre-Sentence Report is not Well
Morris' motion to correct his pre-sentence report
(“PSR”) is not well-taken. In his motion, Morris
contends a pending charge was incorrectly attributed to him
in his PSR. Morris specifically contends that he has no
pending charges in Clarksdale, Mississippi, and the charges
of simple assault and domestic violence set forth in the PSR
were not against him. See ECF doc. 204, pg. 15. As
such, Morris has moved to correct his PSR pursuant to
F.R.Cr.P. 36. This rule allows the court to “correct a
clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from
oversight or omission.” However, Morris has neither
demonstrated a clerical error that requires correction nor
has he offered any documentation in support of his claim.
Morris' challenges to his PSR have been fully litigated.
Prior to his sentencing, Morris filed objections to his PSR,
both pro se and through counsel. ECF doc. 59. These
were overruled at his sentencing hearing. Morris again
challenged the accuracy of his PSR in a “Memorandum of
Law in Support of 18 USC 3582, ” which was filed in
support of his motion for reduction of sentence. ECF docs.
126 and 128. This motion was denied. ECF doc. 167. Morris
filed a motion to correct his PSR on July 14, 2014, which was
denied. ECF docs. 208 and 210. Morris appealed that decision
to the Fifth Circuit who dismissed the appeal as frivolous
and issued sanction warning. ECF doc. 218. As this Court held
in the order denying Morris' first motion to correct his
PSR, “Petitioner has ...