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United States v. Higgs

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

February 23, 2017

United States of America,
Raymon Anthony Higgs, Defendant.


          CAMERON MCGOWAN CURRIE Senior United States District Judge.

         This 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.

         I. Background

         Defendant 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. 48.

         A 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.

         At 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 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, 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.

         On April 18, 2016, the Supreme Court decided Welch, which held that the newly established right recognized in Johnson is retroactive to cases on collateral review.

         III. Discussion

         Defendant's § 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[1], 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 13.

         In 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.

         In his 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.

         Based 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 ...

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