United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
seeks relief pursuant to 28 U.S.C. § 2255, arguing that
in light of the Supreme Court's holding in 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), Defendant is no longer a career offender and should
be resentenced. ECF No. 150. While Defendant originally filed
a pro se motion, the Federal Public Defender was
appointed and filed a response in support. ECF No. 156. The
Government filed a response in opposition to Defendant's
§ 2255 motion both before and after the Public
Defender's memorandum. ECF Nos. 153, 158.
February 16, 2011, Defendant was indicted in a nine count
indictment for: conspiracy with intent to distribute
marijuana, in violation of 21 U.S.C. §§ 841 (a)(1),
841(b)(1)(D), and 846; possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. §
924(c); felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); and six
counts of possession with intent to distribute heroin, in
violation of § 841(a)(1) and (b)(1)(C). ECF No. 1.
Defendant entered into a written plea agreement on May 11,
2011, agreeing to plead guilty to counts two and seven of the
indictment (the 924(c) charge and one count of possession
with the intent to distribute heroin). ECF No. 46. Defendant
entered the guilty plea in this court the same day. ECF No.
Pre-Sentence Report (PSR) concluded Defendant was a career
offender pursuant to U.S.S.G. §4B1.1(b). The PSR found
Defendant's prior convictions for Strong Arm Robbery and
Possession with Intent to Distribute Crack Cocaine were
predicate convictions for career offender purposes.
See PSR ¶¶ 55, 60. Defendant's
guideline range was calculated to be 262-327 months. There
were no objections to the PSR.
August 24, 2011, Defendant appeared for sentencing. The court
sentenced Defendant to 262 months' total imprisonment and
a six-year term of supervised release. Defendant did not
appeal his conviction or sentence. Defendant's sentence
was reduced to a total term of 168 months on February 22,
2016. ECF No. 145. Defendant filed the instant § 2255
motion on April 4, 2016.
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.
newly recognized right established in Johnson has not been
held to apply 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, provided 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” qualified 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
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.
has two predicate convictions which served to qualify him for
the career offender enhancement: one felony drug offense and
one violent felony - the Strong Arm Robbery conviction. While
Defendant's drug offense was untouched by the Johnson
ruling and any potential application of that reasoning to the
career offender guideline, his other predicate offense was a
violent felony and potentially affected by the Beckles
decision on the career offender residual clause. Therefore,
assuming arguendo the residual clause of the career offender
guideline is void for vagueness, the issue at hand is whether
the Strong Arm Robbery conviction qualifies as a predicate
conviction under the force clause, or only qualified under
the residual clause.
Fourth Circuit recently decided United States v.
Doctor, 842 F.3d 306 (4th Cir. 2016), which held that
South Carolina robbery is a violent felony under the
ACCA. South Carolina courts define Strong Arm
Robbery as the “felonious or unlawful taking of money,
goods, or other personal property of any value from the
person of another or in his presence by violence or by
putting such person in fear.” Id. at *2
(citing State v. Rosemond,589 S.E.2d 757, 758 (S.C.
2003)). The court examined cases defining and interpreting
South Carolina law to conclude that robbery by either putting
someone in fear or by actual violence satisfies the force
clause by requiring the threat or use of “violent
force.” Id. at *5 (“South Carolina has
defined its common law robbery offense, whether committed by
means of violence or intimidation, to necessarily include as
an element the ‘use, attempted use, or threatened use
of physical force against the person of
another.'”). The court also rejected defense
arguments that South Carolina robbery could be committed by
violent force against property instead of a person, without
an intentional use of force, and by using ...