United States District Court, D. South Carolina, Anderson/Greenwood Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court on Fredrick Belcher’s
(“Belcher”) motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. On July 2,
2002, Belcher pled guilty to possession with intent to
distribute five grams or more, but less than fifty grams of
cocaine base in violation of 21 U.S.C. § 841(a)(1). On
October 29, 2002, Belcher was sentenced to 235 months’
imprisonment. Belcher appealed his conviction and sentence.
On April 23, 2003, the United States Court of Appeals for the
Fourth Circuit affirmed Belcher’s conviction and
sentence. United States v. Belcher, No. 02-4891,
2003 WL 1919604, at *1 (4th Cir. Apr. 23, 2003)
(unpublished). On July 22, 2004, Belcher filed a § 2255
motion alleging various ineffective assistance of counsel
claims. The court summarily dismissed Belcher’s motion
on August 20, 2004. United States v. Belcher, Cr.
No. 8:01-956, C/A No. 8:04-2440-20 (D.S.C. Aug. 20, 2004)
(unpublished). On December 29, 2005, the Fourth Circuit
dismissed Belcher’s appeal. United States v.
Belcher, No. 05-6565, 2005 WL 3555952, at *1 (4th Cir.
Dec. 29, 2005) (unpublished). On July 8, 2014, Belcher filed
a § 2255 motion alleging that he was improperly
sentenced as a career offender, which was dismissed as
successive on July 29, 2014. Belcher appealed and the Fourth
Circuit dismissed the appeal for failure to prosecute on
October 7, 2014.
17, 2016, the United States Court of Appeals for the Fourth
Circuit granted Belcher’s application requesting
permission to file a second or successive § 2255 motion
in light of Johnson v. United States, 135 S.Ct. 2551
granting Belcher’s request to file a second or
successive § 2255 motion, the Fourth Circuit found that
Belcher has made a prima facie showing that the new rule of
constitutional law announced in Johnson v. United
States, 135 S.Ct. 2551 (2015), and held to apply
retroactively to cases on collateral review by Welch v.
United States, 136 S.Ct. 1257 (2016), may apply to his
case. See In re Hubbard, F.3d, No. 15-276 (4th Cir.
June 8, 2016).
In re Belcher, No. 16-379 (4th Cir. June 17, 2016)
(unpublished). Belcher has filed a § 2255 motion seeking
relief under Johnson. (§ 2255 Mot., generally,
ECF Nos. 83 & 91.) Therefore, this matter is ripe for
alleges that he was improperly sentenced as a career offender
under the United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.1 pursuant to
Johnson. In Johnson, the United States
Supreme Court held that the residual clause in the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague. Id.
at 2563. The United States Court of Appeals for the Fourth
Circuit has not decided whether Johnson applies to
career offenders sentenced under the U.S.S.G. In re
Hubbard, No. 15-276, 2016 WL 3181417, at *7 (4th Cir.
June 8, 2016) (finding that “application of
Johnson to [18 U.S.C.] § 16(b) as incorporated
into the Sentencing Guidelines might render the
career-offender residual clause [of the U.S.S.G.] that was
applicable at the time [the movant] was sentenced
unconstitutional” (emphasis added)). Further, the court
need not decide that issue in the case at bar. Even assuming
Johnson applies to career offender enhancements
under the U.S.S.G., it would afford Belcher no relief.
Belcher still qualifies as a career offender under the
U.S.S.G. because he has at least two predicate convictions
for crimes of violence or controlled substance offenses.
U.S.S.G. § 4B1.1(a). Belcher’s South Carolina
conviction for possession with intent to distribute in
paragraph 43 of his Presentence Investigation Report
(“PSR”) qualifies as a controlled substance
offense. United States v. Brown, No. 15-4278, 2016
WL 66553, at *2 (4th Cir. Jan. 5, 2016) (finding that
Johnson “has no impact on [a
defendant’s] predicate serious drug offenses”).
Further, Belcher’s conviction for pointing or
presenting a firearm in paragraph 45 of the PSR qualifies as
a crime of violence. United States v. King, 673 F.3d
274, 280 (4th Cir. 2012) (finding that “conviction for
pointing and presenting a firearm in violation of [S.C. Code
Ann. §] 16-23-410 was for an offense that ‘has as
an element the . . . threatened use of physical force against
the person of another, ’ U.S.S.G. § 4B1.2(a)(1),
and therefore qualifies as a ‘crime of violence’
under the first clause of the Guidelines definition of that
term”); U.S.S.G. § 4B1.2(a). Based on the
foregoing, Belcher was properly sentenced as a career
offender. Accordingly, Belcher’s § 2255 motion is
without merit and is dismissed.
that Belcher’s § 2255 motion, docket numbers 83
and 91, is summarily dismissed. It is further
that a certificate of appealability is denied because Belcher
has failed to make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
OF RIGHT TO APPEAL
Movant is hereby notified that he has the right to appeal
this order within sixty (60) days from the date hereof
pursuant to Rules 3 and 4 ...