Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gibson

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

November 3, 2016

United States of America,
v.
Karlos Gibson, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         On June 30, 2016, Defendant filed a pro se motion under 28 U.S.C. § 2255 to vacate his sentence in light of Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015) and Welch v. United States, 578 U.S. __, 136 S.Ct. 1257 (2016). ECF No. 98.[1] The Government filed a motion for summary judgment and a memorandum in support/response in opposition to Defendant's § 2255 motion. ECF No. 104. On September 15, 2016, Defendant filed a reply. ECF No. 107.

         I. Background

         On February 16, 2011, Defendant was indicted for Conspiracy to Possess with Intent to Distribute cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B), and possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A). ECF No. 2. On March 23, 2011, 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. 35.

         On May 18, 2011, Defendant entered into a written plea agreement to plead guilty to count 1 of the indictment, conspiracy to possess with intent to distribute more than 500 grams of cocaine and more than 280 grams of “crack” cocaine. ECF No. 46. The same day, Defendant appeared before this court and pled guilty as above. ECF No. 49.

         A 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. 64. Defendant's predicate offenses were possession with intent to distribute marijuana and criminal domestic violence of a high and aggravated nature (“CDVHAN”). Id. Defendant's guideline range as a career offender was 262-327 months.

         Defendant filed an objection to the PSR, arguing that his CDVHAN conviction did not count as a predicate offense for career offender purposes. ECF No. 56-3. Defendant also filed a sentencing memorandum, providing further support for the argument made in the objection. ECF No. 57. The Government replied, arguing that the CDVHAN did qualify as a crime of violence for career offender purposes. ECF No. 58.

         On August 17, 2011, Defendant appeared for sentencing. ECF No. 59. Defendant's objection to the use of CDVHAN as a career offender predicate was overruled, but a defense motion for downward departure based on overrepresentation of criminal history was granted. The court sentenced Defendant outside the applicable career offender range to the statutory mandatory minimum 240 months imprisonment, with ten years of supervised release to follow. ECF No. 60. On August 3, 2015, an Amended Judgment was entered, reducing Defendant's sentence to 204 months. ECF No. 82.

         II. Impact of 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 Johnson is retroactive to cases on collateral review.

         In 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, at the time of Defendant's sentencing, contained a residual clause in its definition of “crime of violence.”[2] That residual clause, similar to the one in the ACCA, explained 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); U.S.S.G. § 4B1.2 (2008).

         The 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.

         III. Discussion

         In this case it is not necessary to decide whether the residual clause in the career offender guideline was invalidated by Johnson, and therefore unnecessary to await the Supreme Court's decision in Beckles. Similarly, the court need not determine at this time whether CDVHAN is a “crime of violence” under the career offender force clause. While Defendant was categorized as a career offender in the PSR, Defendant's motion for a downward departure was granted and he was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.