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United States v. Bullard

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

November 29, 2016

United States of America,
George Allen Bullard, Defendant.



         Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. ECF No. 34. The Government filed a response in opposition and a motion for summary judgment. ECF No. 41, 42. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. ECF No. 43. Defendant filed no response to the Government's motion for summary judgment and the time for doing so has passed. This matter is now ripe for resolution.

         I. Background

         Defendant was indicted for one count of carjacking resulting in death, in violation of 18 U.S.C. § 2119(3). ECF No. 1, 22.[1] On July 16, 1999, Defendant entered into a written plea agreement. ECF No. 23. On July 21, 1999, Defendant appeared before the court and entered a guilty plea to a lesser included offense of carjacking resulting in serious bodily injury, a violation of 18 U.S.C. § 2119(2).

         A Pre-Sentence Report (PSR) assessed a base offense level of 20 for the violation of § 2119(2). ECF No. 32. However, as stipulated in the plea agreement, the cross-reference for murder was applied as a special offense characteristic, raising the offense level to 43. Defendant received a three level adjustment for acceptance of responsibility, reducing his total offense level to 40. Defendant was not determined to be an armed career criminal or a career offender. Defendant's guideline range was calculated as 360 months to life; however, due to the statutory maximum, the guideline range became 300 months.

         At sentencing on November 12, 1999, the court sentenced Defendant to 300 months imprisonment and a five year term of supervised release. ECF No. 25. 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 his sentence should be “dismiss[ed] or vacate[ed] or correct[ed]” in light of the Johnson decision. ECF No. 34. This § 2255 motion was filed on July 12, 2016. The Government argues that the deadline for filing a § 2255 motion based on Johnson was June 27, 2016. See ECF No. 41. Further, the Government argues that Defendant's § 2255 motion should be dismissed as without legal basis as Johnson does not apply to his case.

         First, Johnson and its progeny have no effect on the statute regarding carjacking or the murder cross-reference of the sentencing guidelines. As discussed above, Johnson serves to invalidate a portion of the definition of “violent felony” in the ACCA. While 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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