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Allen v. United States

United States District Court, D. South Carolina, Beaufort Division

September 7, 2016

Gary Michael Allen, Petitioner,
v.
United States of America, Respondent.

          ORDER

          PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE

         Gary Michael Allen, a federal prisoner, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 665). Allen also asks to be released on bond pending this Court's disposition of his § 2255 motion (ECF No. 674). The United States (“Government”) has filed a motion to stay proceedings (ECF No. 675). For the reasons stated herein, the Court grants the Government's motion to stay and denies Allen's motion to be released.

         BACKGROUND

         In 1997, a jury found Allen guilty of conspiring to possess and distribute cocaine base. See 21 U.S.C. §§ 841(a)(1), 846. The presentence report prepared for Allen designated him as a career offender under the U.S. Sentencing Guidelines. See U.S.S.G. §§ 4B1.1, 4B1.2 (1995). Allen's prior felony convictions supporting that designation included a Delaware conviction for delivering heroin, two Delaware convictions for second-degree robbery, and a Pennsylvania conviction for robbery. Applying the career-offender sentencing enhancement, the Court sentenced Allen to 360 months in prison.

         Allen filed his § 2255 motion on June 22, 2016. Just over a month later, on July 25, he filed his motion to be released on bond. The Government moved for a stay on August 10. No party filed responses to any of the motions. The Court finds that the motion to stay and the motion for bond are ripe for consideration.

         DISCUSSION

         Although the two motions at bar do not directly involve the merits of Allen's § 2255 claim, an overview of his claim provides some context for the motions. Under the Sentencing Guidelines, a defendant is a career offender if

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). Allen's motion focuses solely on the third element. Although Allen concedes his conviction for delivering heroin is a predicate controlled substance offense, he contends his three robbery convictions are not “crimes of violence.” The Guidelines define that term as any federal or state offense, punishable by more than a year in prison, that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). The italicized language in § 4B1.2(a)(2) is commonly called the “residual clause.” See United States v. Chisolm, 579 F. App'x 187, 190 (4th Cir. 2014). Allen argues that the residual clause is the only part of the definition into which any of his three robbery convictions could fit.

         Last year, the Supreme Court held that an identically worded residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). Allen contends that Johnson's holding applies to ยง 4B1.2(a)(2)'s residual clause, which means his robbery convictions cannot validly be viewed as career-offender predicate crimes of violence. Thus, he argues, he no longer has enough ...


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