United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
inmate Paul Linville Bargo has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 to challenge the application of a mandatory
minimum to his federal sentence based upon prior felony drug
convictions in Kentucky. [R. 1] The Court must screen the
petition pursuant to 28 U.S.C. § 2243. Alexander v.
Northern Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th
August 2008 a federal grand jury in London, Kentucky issued a
superseding indictment charging Bargo with twelve counts of
possession with intent to distribute methamphetamine,
marijuana, and oxycodone in violation of 21 U.S.C. §
841(a)(1), and of possession of pseudoephedrine with intent
to manufacture methamphetamine in violation of 21 U.S.C.
§ 841(c)(2); three counts of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 846; one
count of conspiracy to intimidate or tamper with a witness in
violation of 18 U.S.C. § 371; and one count of witness
tampering in violation of 18 U.S.C. § 1512(b)(2)(a). In
January 2009, one day after the trial began Bargo agreed to
plead guilty to Counts 6-15 of the Superseding Indictment,
which involved trafficking in marijuana and hydrocodone. One
week later the jury found Bargo guilty of Counts 1-5 related
to trafficking in methamphetamine, but not guilty of the
witness tampering charges.
to trial, the government had given notice pursuant to 21
U.S.C. § 851 that Bargo was subject to enhanced
penalties because he had two prior state felony drug
convictions for trafficking in marijuana. In light of those
prior convictions, the Presentence Investigation Report
indicated that Bargo was subject to a mandatory minimum term
of life imprisonment without release. See 21 U.S.C.
§ 841(b)(1)(A)(viii) (“If any person commits a
violation of this subparagraph ... after two or more prior
convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life
imprisonment without release ...”).
did not object to the PSR at sentencing. In August 2009, the
trial court sentenced Bargo to life imprisonment without
release on Counts One, Two, and Five for conspiracy to
manufacture and/or distribute methamphetamine, 327 months
imprisonment on Count Three for distribution of
methamphetamine, 240 months imprisonment on Count Four for
possession of pseudoephedrine with intent to manufacture
methamphetamine, and terms of 120 months imprisonment for
each of the ten counts of trafficking in marijuana and
hydrocodone, all terms to be served concurrently with one
another. Bargo appealed the calculation of the drug quantity,
but the Sixth Circuit affirmed his conviction and sentence.
United States v. Bargo, No. 6: 08-CR-19-01-GFVT
(E.D. Ky. 2008), aff'd, 482 Fed.Appx. 78 (6th
August 2013, Bargo sought relief from his conviction and
sentence through motion filed pursuant to 28 U.S.C. §
2255. In one of several supplements to that motion, Bargo
contended that his counsel was ineffective for failing to
argue that his prior Kentucky convictions for drug
trafficking did not qualify as prior “felony drug
offenses” to warrant application of the mandatory
minimum sentence of life imprisonment. The trial court
rejected that argument, noting that “[b]ecause
Defendant's prior convictions related to marijuana
trafficking and were punishable by imprisonment for more than
one year under Kentucky law, they qualify as prior
convictions for purposes of enhancement. Whether
Defendant's prior convictions would be felonies under
federal law simply does not matter given their nature under
Kentucky law.” United States v. Bargo, No.
6:13-CV-7304-GFVT-HAI, 2014 WL 12703778, at *6 (E.D. Ky. July
10, 2014), report and recommendation adopted, 2016
WL 595493 (E.D. Ky. Feb. 12, 2016).
2017, Bargo requested permission to file a second or
successive § 2255 motion to challenge his sentence.
However, the Sixth Circuit denied his request, noting that
Johnson v. United States, 135 S.Ct. 2551 (2015)
provided no basis for relief because his sentence was not
enhanced under 18 U.S.C. § 924(e), and that Mathis
v. United States, 136 S.Ct. 2243 (2016) did not announce
a new rule of constitutional law and did not apply
retroactively as required by 28 U.S.C. § 2255(h)(2).
In re: Bargo, No. 17-5342 (6th Cir. Aug. 30, 2017).
In December 2018, Bargo attempted to seek relief under
Mathis by filing a “Memorandum of Law in
Support of Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241.” But he filed that document in his
criminal case, and no action has been taken upon it since its
filing. Three months later, Bargo filed the same document,
which has been docketed as a § 2241 petition in this
action. [R. 1]
makes two arguments in his current petition. First, he
contends that using the categorical approach described in
Mathis, his prior Kentucky convictions for
trafficking in marijuana do not constitute “felony drug
offenses” as required to implicate the mandatory
minimum sentences required by 21 U.S.C. §
841(b)(1)(A)(viii). Even assuming that Bargo's argument
under Mathis satisfies the cognizability
requirements of Hill v. Masters, 836 F.3d 591 (6th
Cir. 2016), his argument is misplaced. Neither
Mathis nor the categorical approach discussed in
that decision apply to the determination of whether a prior
drug trafficking offense qualifies as a “felony drug
offense.” While Mathis applies to sentence
enhancements under 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.1(a), it does not address or relate to sentence
enhancements under § 841(b)(1)(A).
qualify as a “felony drug offense, ” no detailed
comparison of elements is required. Rather, 21 U.S.C. §
802(44) merely requires that the prior state or federal
offense (1) be punishable by more than one year in prison,
and (2) that it “prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic
steroids, or depressant or stimulant substances.”
(emphasis added). By its terms, § 802(44) does not
require that the prior offense constitute any particular
species of crime, but only that it “relat[e] to”
conduct involving drugs. Given the breadth of this
definition, the use of the categorical approach is neither
necessary nor appropriate. See United States v.
Graham, 622 F.3d 445, 456-57 (6th Cir. 2010); United
States v. Soto, 8 Fed.Appx. 535, 541 (6th Cir. 2001)
(“[T]his court does not employ a categorical approach
to determining whether a prior conviction constitutes a
‘felony drug offense' for purposes of section 841
(b)(1).”); United States v. Spikes, 158 F.3d
913, 932 (6th Cir. 1998) (“[Section] 802(44) only
requires that the state statute criminalize conduct
‘relating' to drugs. The use of the expansive term
‘relating' as the only substantive limitation on
the reach of the statutory phrase ‘felony drug
offense' clearly indicates that the statute encompasses
drug offenses that involve the simple possession of
drugs.”), cert. denied, 525 U.S. 1086 (1999).
more complex analysis involved in cases governed by
Mathis is simply not relevant to determinations
under § 841(b)(1)(A). Cf. United States v.
Smith, No. 1:12-CR-88-1, 2017 WL 3528954, at *5-6 (W.D.
La. July 11, 2017) (noting that “[t]he categorical
approach in Moncrieffe and Taylor has never
been applied to the enhanced penalty provisions of §
841(b)(1)(A) and has never been used to interpret the phrase
‘felony drug offense' in 21 U.S.C. §
802(44).”) (citing United States v. Wing, No.
5:13-CR-87-JMH, 2016 WL 3676333, at *2 (E.D. Ky. 2016)). The
Sixth Circuit has repeatedly confirmed that Mathis
is not applicable to sentences enhanced under §
841(b)(1)(A). Smith v. Ormond, No. 6: 18-012-DCR
(E.D. Ky. Jan. 16, 2018), aff'd, No. 18-5101,
2018 WL 7143637, at *4 (6th Cir. July 30, 2018); Hidalgo
v. Smith, No. 0: 17-CV-133 (E.D. Ky. Jan. 8, 2018),
aff'd, No. 18-5230, at *4 (6th Cir. Sept. 20,
2018); Romo v. Ormond, No. 6: 17-CV-73-DCR (E.D. Ky.
Sept. 14, 2017), aff'd, No. 17-6137, at *4 (6th
Cir. Sept. 13, 2018); McKenzie v. Ormond, No.
17-CV-172-GFVT (E.D. Ky. Jan. 4, 2018), aff'd,
No. 18-5072, at *4 (6th Cir. July 11, 2018).
Bargo contends that the provisions of the Sentencing Reform
and Corrections Act of 2017 apply retroactively and require
that his life sentences be reduced to a term of 25 years
imprisonment. [R. 1-1] This bill was never enacted into
positive law. See
(last visited on March 26, 2019). It is likely that Bargo is
referring to the First Step Act of 2018, which became law on
December 21, 2018 and which contains similar provisions.
(last visited on March 26, 2019). Regardless, the proper
forum to seek relief under such provisions is by motion filed
in the court that imposed sentence; a § 2241 petition is
not a proper vehicle to do so.
addition, Bargo's assertion that the change applies
retroactively is incorrect. The change he describes is set
forth in Section 401(a)(2)(A)(ii) of the Act, but Section
401(c) states: “Applicability to Pending
Cases: This section, and the amendments made by this section,
shall apply to any offense that was committed before the date
of enactment of this Act, if a sentence for the offense
has not been imposed as of such date of
enactment.” (emphasis added). The Court makes no
conclusive determination on the matter, but Bargo does not
appear to qualify for relief under the Act because his
sentence was imposed well before the First Step Act was
enacted on December 21, 2018.
IT IS ORDERED as follows:
Petitioner must pay the five dollar filing fee required by 28
U.S.C. § ...