United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
proceeding pro se, seeks relief in this court
pursuant to 28 U.S.C. § 2255. ECF No. 64. The Government
filed a response in opposition. ECF No. 72. This matter is
now ripe for resolution.
November 20, 2012, Defendant was indicted for one count of
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), and one count of distribution of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2).
ECF No. 2. On April 2, 2013, the Government filed an
Information, charging the Defendant with possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
ECF No. 37. On April 4, 2013, Defendant entered into an
amended written plea agreement to plead guilty to count 1 of
the Information. ECF No. 43. 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. The same day, Defendant appeared
before the court and after a thorough Rule 11 hearing (which
Defendant does not challenge), entered a guilty plea to the
count charged in the Information. ECF No. 42.
Pre-Sentence Report (PSR) assessed five separate increases in
Defendant's base offense level pursuant to U.S.S.G.
§ 2G2.2 based on the quantity and characteristics of the
pornography possessed. See ECF No. 51, PSR
¶¶ 59-64. Defendant objected to all of these
enhancements as punishing him for “behavior that is no
longer out of the ordinary” as the guideline
enhancements serve to “artificially inflate his
guideline range with offense characteristics that appear in
nearly all contemporary child pornography cases.”
Addendum to PSR, ECF No. 51-2. In response, the Probation
Officer declined to amend the PSR. Defendant's guideline
range was calculated as 135-168 months; however, due to the
statutory maximum, the guideline range became 120 months.
filed a motion to vary from the guideline range to a
probationary sentence based on the § 3553(a) factors.
ECF No. 52. This motion contained similar arguments regarding
the enhancements. At sentencing, the court granted in part
the motion to vary from the guideline range and sentenced
Defendant to 70 months imprisonment and a lifetime term of
supervised release. ECF No. 59. The Government objected to
the variance. Defendant did not appeal his conviction or
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.” Johnson
v. United States, 576 U.S. at __, 135 S.Ct. 2551 (2015).
By holding the residual clause unconstitutionally vague, the
Court narrowed the predicate offenses that could serve to
enhance a sentence to those in the enumerated or force
clauses. The 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), which held
that the newly established right recognized in
Johnson is retroactive to cases on collateral
argues that he should be granted relief because both the
statute under which he was convicted and the guideline
enhancements applied should be invalidated under the
vagueness doctrine explained in Johnson. ECF No. 64.
Defendant's argument fails.
Johnson and its progeny have no effect on the
statute or enhancements for possessing child pornography. As
discussed above, Johnson serves to invalidate a
portion of the definition of “violent felony” in
the ACCA. While Defendant is correct that some courts have
applied Johnson's reasoning beyond the ACCA, for
example to the residual clause of the career offender portion
of the sentencing guidelines or to the residual clause in
§ 924(c), there is simply no like reasoning that would
invalidate the statute under which Defendant was convicted or
the specific guideline enhancements applied to his case.
Defendant fails to point to authority applying
Johnson to this statute or any of the enhancements
at issue, or to explain how the vagueness doctrine affects
them. Neither the statute nor the guideline enhancements
contain a residual clause that could be held
unconstitutionally vague; instead, they clearly lay out which
actions are criminalized by the statute or subject to
enhancement under the guidelines. Therefore, Johnson
cannot serve to invalidate the sentence received by
Defendant's motion is untimely. A 1-year period of