United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
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. 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.
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.
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.
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.
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.
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.
Impact of 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.” 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.
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.” 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
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.
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 ...