United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
through his attorney, seeks relief in this court pursuant to
28 U.S.C. § 2255. ECF No. 1371. The Government filed a
motion to dismiss and a memorandum in support. ECF No. 1403.
On August 12, 2016, the Government filed a supplemental
motion to dismiss. ECF No. 1404. The supplemental motion to
dismiss noted that the Government consulted with Assistant
Federal Public Defender Kathy Evatt and was advised that she
takes no position on the motion. Id.
October 21, 2009, Defendant was indicted (via superseding
indictment) in this court for Conspiracy to Possess with
Intent to Distribute cocaine base and cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and
possession with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841
(b)(1)(C). ECF No. 367. On November 25, 2009, the Government
filed an Information pursuant to 21 U.S.C. § 851,
notifying Defendant that he was subject to increased
penalties based on two prior convictions for felony drug
offenses. ECF No. 480.
January 12, 2010, Defendant entered into a written plea
agreement to plead guilty to count 1 of the superseding
indictment, conspiracy to possess with intent to distribute 5
kilograms or more of cocaine and 50 grams or more of
“crack” cocaine. ECF No. 564. As part of the plea
agreement, Defendant stipulated that he had one prior felony
drug conviction that was the subject of an Information filed
pursuant to § 851, and which subjected him to a
mandatory minimum sentence of 240 months imprisonment.
Id. at ¶ 12. In return, the Government agreed
that only the first prior conviction in the Information was
legally valid. As a part of the plea agreement, Defendant
waived his direct appeal rights and his right to file a
motion for relief under § 2255 except as to claims of
ineffective assistance of counsel and/or prosecutorial
misconduct. On January 15, 2010, Defendant appeared before
this court and pled guilty as above. ECF No. 577.
Pre-Sentence Report (PSR) concluded Defendant had at least
two prior felony convictions of either a crime of violence or
a controlled substance offense, and therefore was classified
as a career offender pursuant to U.S.S.G. §4B1.1(b). ECF
No. 721. Among Defendant’s predicate offenses were
possession with intent to distribute cocaine base (1995) and
criminal domestic violence, 3rd or more. Id.
filed objections to the drug weight attributed to him and to
his alleged status as a gang member in the PSR. ECF No.
721-3. Defendant also filed a sentencing memorandum, noting
that Defendant’s guideline range was 262-327 months,
but requesting a sentence of 240 months, the statutory
mandatory minimum. ECF No. 738.
9, 2013, Defendant appeared for sentencing. ECF No. 741. The
Government withdrew one of the two filed § 851
enhancements. Defendant’s objection as to his alleged
gang affiliation was sustained, and he withdrew the remaining
objections. The court granted Defendant’s request for a
downward variance, sentencing Defendant to the mandatory
minimum 240 months imprisonment, with ten years of supervised
release to follow. ECF No. 755. On December 17, 2014, an
Amended Judgment was entered, reducing Defendant’s
sentence to 188 months. ECF No. 1186.
Impact of Johnson and Welch
26, 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act (“ACCA”) violates
due process as it “denies fair notice to defendants and
invites arbitrary enforcement by judges.” 576 U.S. at
__, 135 S.Ct. 2551 (2015). By holding the ACCA residual
clause unconstitutionally vague, the Court narrowed the
predicate offenses that could serve to enhance a sentence to
those that qualify under the enumerated or force clauses. The
ACCA residual clause can no longer support a
defendant’s classification as an armed career criminal.
April 18, 2016, the Supreme Court decided Welch v. United
States, 578 U.S. __, 136 S.Ct. 1257 (2016), holding that
the newly established right recognized in Johnson is
retroactive to cases on collateral review.
order for Defendant to be entitled to relief, the newly
recognized right established in Johnson must be
applicable not only to the ACCA, but to the career offender
portion of the Sentencing Guidelines, which contains a
residual clause in its definition of “violent
felony.” That residual clause, similar to the one in
the ACCA, explains that “any other offense that is a
felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense”
may be used as a predicate offense for career offender
purposes. 18 U.S.C. § 16 (b)
Fourth Circuit recently noted that it was “not
persuaded” that Johnson applied only to the
ACCA’s residual clause and not the residual clause
found in § 16(b). See In re Creadell Hubbard,
No. 15-276, __ F.3d __, 2016 WL 3181417, at *3 (4th Cir. June
8, 2016). Although dealing with the standard for review of an
application under § 2244 for permission to file a second
or successive § 2255 motion, instead of the standard for
relief under § 2255, the Fourth Circuit suggested that
the residual clause of § 16(b) may also be invalidated
by Johnson. Id. The Supreme Court has
granted certiorari in United States v.
Beckles, No. 15-8544, in order to determine whether
Johnson applies to the career offender guideline.