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United States v. Dixon

United States District Court, D. South Carolina, Rock Hill Division

September 27, 2016

United States of America,
Michael Jerrod Dixon, Defendant.



         Defendant, pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. ECF No. 373. The Government filed a motion for summary judgment and a memorandum in support/response in opposition to Defendant's § 2255 motion. ECF Nos. 381, 382. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the response procedure and the consequences if he failed to respond. ECF No. 384. Defendant did not file a response and the time for doing so has expired.

         I. Background

         On May 20, 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 two counts of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C). ECF No. 125. On May 6, 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: a conviction for possession with intent to distribute (“PWID”) crack cocaine, and a conviction for possession of contraband in jail. ECF No. 122. Defendant filed a reply to the Information, objecting to the PWID conviction counting as a prior felony drug conviction, arguing that he was sentenced under the South Carolina Youthful Offender Act and under the age of 18. ECF No. 143. He also objected to the contraband conviction, asserting he did not voluntarily enter a guilty plea to that charge, but thought he was pleading to a non-drug charge. Id.

         On June 9, 2009, 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. 147. As part of the plea agreement, Defendant stipulated that he had at least one prior felony drug conviction (the PWID crack conviction) that was the subject of an Information filed pursuant to § 851, and which subjected him to a mandatory minimum sentence. Id. at ¶ 12. In return, the Government agreed to withdraw the enhancement that remained contested (the possession of contraband in jail conviction). As a part of the plea agreement, Defendant waived his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. The same day, Defendant appeared before this court and pled guilty as above. ECF No. 154. At the plea hearing, Defendant withdrew his challenge to the § 851 enhancement regarding the PWID crack cocaine charge, but indicated his wish to proceed with the challenge to the enhancement regarding contraband. ECF No. 153. Towards that end, Defendant filed a motion to strike prior conviction regarding the contraband conviction. ECF No. 173.

         A Pre-Sentence Report (“PSR”) concluded Defendant had at least two prior felony drug convictions and that he faced a mandatory sentence of life imprisonment. ECF No. 220. Under the plea agreement, the Government was to withdraw one § 851 enhancement, reducing Defendant's sentence from life to twenty years. Id. Defendant filed five objections to the PSR, then withdrew three objections, leaving the following two objections: 1) an objection to an increase in his base offense level because the convictions in paragraphs 33, 34, and 35 of the PSR should have counted as a single conviction for criminal history purposes; and 2) an objection to the guideline calculation based on the above objection. The probation officer declined to amend the PSR. ECF No. 177-1.

         On August 17, 2009, Defendant filed a motion to continue the sentencing hearing scheduled for August 18, 2009.[1] ECF No. 185. Defense counsel had just learned the Government asserted Defendant failed a polygraph examination, and would not withdraw the § 851 enhancement for the contraband conviction. Counsel requested more time to investigate the results of the polygraph examination. The court denied the motion. ECF No. 186. However, at the hearing on August 18, 2009, sentencing was continued until September 2, 2009. ECF No. 198.

         On September 2, 2009, Defendant appeared for sentencing. ECF No. 213. The court denied Defendant's motion to strike the § 851 enhancement for the contraband conviction. The Government did not withdraw one of the convictions for the enhancement. The court sentenced Defendant to a mandatory minimum term of life imprisonment, with ten years of supervised release to follow. ECF No. 214.

         Defendant appealed his conviction and life sentence. ECF No. 218. The issues on appeal were whether the district court erred in enhancing Defendant's sentence when he allegedly did not know he was pleading guilty to the contraband offense, and whether the enhancement was proper when two of his predicate offenses “may have been consolidated” in state court. The Fourth Circuit denied the first challenge, to the contraband offense, as the challenge to the conviction was precluded by the five-year statute of limitations in § 851(e). ECF No. 296. The court also found that the two predicate offenses “that may have been consolidated” were in fact two separate offenses and that Defendant's sentence was procedurally and substantively reasonable. Id.

         On June 27, 2016, Defendant filed a § 2244 motion with the Fourth Circuit, seeking permission to file a second or successive § 2255 motion in the district court based on Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). In re: Michael Dixon, No. 16-9682 (4th Cir. 2016). On July 14, 2016, the Fourth Circuit issued an Order denying Defendant's motion as unnecessary, because Defendant had never filed a previous § 2255 and therefore did not require permission to file a § 2255 motion in the district court. ECF No. 372. Defendant's § 2255 motion was filed in this court on July 14, 2016. ECF No. 373.[2]

         II. Johnson and Welch

         On June 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.

         On 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 Joh ...

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