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United States v. Wyatt

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

October 24, 2016

United States of America,
v.
Jack Richardson Wyatt, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Defendant, 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.

         I. Background

         On 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.

         A 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.

         Defendant 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 sentence.

         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.” 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.

         On 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 review.

         III. Discussion

         Defendant 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.

         First, 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.

         Second, Defendant's motion is untimely. A 1-year period of limitation ...


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