United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
27, 2016, Defendant filed apro 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. 56. The Government filed a
motion for summary judgment and a memorandum in
support/response in opposition to Defendant's § 2255
motion. ECF Nos. 62, 63. 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. 65. Defendant
did not file a response, and the time to do so has expired.
21, 2006, Defendant was indicted for Possession with Intent
to Distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), and 841(b)(1)(A), using and carrying
a firearm during and in relation to a drug trafficking crime
in violation of 18 U.S.C. § 924(c), and felon in
possession of a firearm in violation of 21 U.S.C.
§§ 922 (g)(1) and 924(e). ECF No. 2. On June 26,
2006, the Government filed an Information pursuant to 21
U.S.C. § 851, notifying Defendant that a conviction on
count 1 would subject him to a mandatory life sentence based
on three prior convictions for felony drug offenses. ECF No.
February 8, 2007, Defendant entered into a written amended
plea agreement to plead guilty to counts 2 and 3 of the
Indictment, carrying a firearm in relation to a drug
trafficking crime and felon in possession, respectively. ECF
No. 34. 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 Government stipulated for
purposes of sentencing that Defendant was an Armed Career
Criminal as a result of at least three prior convictions for
violent felonies or serious drug offenses. Id. at
¶ 17. Thereafter, Defendant appeared before this court
and pled guilty as above. ECF No. 37.
Pre-Sentence Report (PSR) concluded Defendant had four prior
felony convictions for controlled substance
offenses and two convictions for violent felonies
or crimes of violence.Therefore, he was classified as a career
offender pursuant to U.S.S.G. §4Bl.l(b) and an Armed
Career Criminal pursuant to § 924(e). ECF No. 46.
Defendant's guideline range was 262-327 months. His
statutory mandatory minimum sentence for his felon in
possession conviction, enhanced by the ACCA, was 15 years,
and his statutory minimum sentence on the § 924(c) count
was 60 months consecutive.
April 19, 2007, Defendant appeared for sentencing. ECF No.
42. The court sentenced Defendant to 262 months imprisonment,
consisting of 202 months on count 3 and 60 months on count 2,
to be served consecutively. ECF No. 43.
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.
is categorized as both an Armed Career Criminal and a career
offender. Therefore, in order for him 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 (2008).
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. While
Defendant was categorized as an Armed Career Criminal and a
career offender in the PSR, these designations stand based on
Defendant's four prior felony convictions for serious
and Welch deal with the ACCA residual clause's
definition of violent felony, and Beckles concerns
the career offender guideline's definition of crime of
violence. None of these cases address predicate convictions
based on drug offenses. Accordingly, the possible application
of Johns ...