United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
matter is before the court on Defendant's
“Emergency Request” and Citation of New
Authority, filed February 6, 2017, regarding his previously
filed motion under 28 U.S.C. § 2255. ECF No. 93. On July
5, 2016, Defendant filed his pro se § 2255
motion 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. 77. On August 1, 2016, the Government filed a
motion to dismiss or for summary judgment and memorandum in
support. ECF No. 83. On September 6, 2016, after an extension
of time was granted, Defendant filed his response, requesting
a stay pending Beckles v. United States, No.
15-8542. ECF No. 90. The court granted Defendant's
motion, and stayed this case pending Beckles. ECF
No. 91. Now, Defendant requests the court proceed with this
case as the stay is “no longer necessary.”
Defendant argues he is entitled to be resentenced without the
career offender enhancement based on new authority.
was indicted for one count of conspiracy to possess with
intent to distribute and to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B); and one count of possession with intent to
distribute 500 grams or more of cocaine (as well as aiding
and abetting a co-defendant and “others” in the
commission of the offense), in violation of §§
841(a)(1) and 841(b)(1)(B). ECF No. 1. On March 7, 2005, an
Information regarding imposition of enhanced sentence of
imprisonment was filed pursuant to § 851(a), putting
Defendant on notice that he was subject to increased
penalties based on a previous conviction for trafficking
illegal drugs in the Superior Court of Cherokee County,
Georgia. ECF No. 34. On March 30, 2005, Defendant entered
into an amended written plea agreement to plead guilty to
count 1 of the indictment (the conspiracy count). ECF No. 47.
In the agreement, Defendant stipulated he had one prior
felony drug conviction, subjecting him to a mandatory minimum
10 year sentence. Id. at ¶ 7. The agreement
also contained an appeal waiver, which included any
post-conviction action (including any proceedings under
§ 2255), other than those for claims of ineffective
assistance of counsel or prosecutorial misconduct.
Id. at ¶ 13. On March 30, 2005, Defendant
entered a guilty plea to count one of the indictment. ECF No.
Pre-Sentence Report (PSR) assessed a base offense level of 34
for the conspiracy charge, based on drug weight. ECF No. 54.
However, Defendant was determined to be a career offender
based on two previous drug offenses (a 1992 Georgia
conviction for possession with intent to distribute and a
1997 Georgia conviction for sale of cocaine), raising the
offense level to 37. Defendant received a three level
adjustment for acceptance of responsibility, reducing his
total offense level to 34. His criminal history category was
VI based on his career offender status. Defendant's
guideline range was calculated as 262 to 327 months.
sentencing on July 7, 2005, the court sentenced Defendant to
262 months imprisonment and an eight year term of supervised
release. ECF No. 52. Defendant did not appeal his conviction
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.”
Johnson, 135 S.Ct. at 2557. 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.
April 18, 2016, the Supreme Court decided Welch,
which held that the newly established right recognized in
Johnson is retroactive to cases on collateral
§ 2255 motion argues his sentence should be vacated in
light of the Johnson and Welch decisions.
ECF No. 77. This § 2255 motion, filed on July 5,
2016, argues Defendant's claim is timely
under § 2255(f)(3), as it was filed “within
one-year from the date the United States Supreme Court
deem[ed] 18 U.S.C. § 924(e)(2)(B)(ii) void for vagueness
and unconstitutional.” Id. at 3.
Substantively, Defendant maintains the Johnson
reasoning should apply to the career offender guideline's
residual clause, and therefore he “does not have two
prerequisite violent felonies and/or serious drug offenses to
enhance his sentence pursuant to § 4B1.2.”
Id. at 9. Defendant also argues that he pled guilty
to simple possession for the 1997 drug offense, which is
listed as “sale of cocaine” in the PSR, and that
the “residual clause in [sic] the only legal tool
available for simple possession.” Id. at 15.
Finally, Defendant contends that even if § 2255 is
“no longer available and/or unreasonable, ” he
can challenge his sentence under § 2241. Id. at
response, the Government argues Defendant's § 2255
motion should be dismissed as without legal basis because
Johnson does not apply to his case. ECF No. 83.
Further, the Government argues Defendant's § 2255
motion is time barred and barred by the appeal waiver in
Defendant's plea agreement.
reply, Defendant requested a stay pending Beckles.
ECF No. 90. Alternatively, he argues his controlled substance
convictions cannot count as predicate offenses for career
offender status because the statute under which he was
convicted includes “offers to sell” and thus is
broader than the guideline definition of a controlled
substance offense. Defendant further argues the
Government's motion to dismiss should be denied as he
“does not have the requisite prior convictions to allow
him to be sentenced as a career offender, ” and he
“cannot waive a substantive constitutional
right.” Defendant does not address timeliness.
on Defendant's request, this court entered a stay pending
Beckles on September 8, 2016. However, it is now
apparent to the court that it is not necessary to wait for
Beckles. Defendant's prior convictions that
rendered him a career offender are not crimes of violence and
as such, do not depend on whether the residual clause of the
career offender guideline is void for vagueness. As this is
the question posed in Beckles, which ...