United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
Edgar Gonzalez-Gutierrez is an inmate in custody of the
Federal Bureau of Prisons who currently is housed at
Moshannon Valley Correctional Institution in Philipsburg,
Pennsylvania. On July 1, 2016, Movant, proceeding pro se,
filed a motion to vacate pursuant to 28 U.S.C. § 2255,
asserting that his sentence is unlawful.
AND PROCEDURAL HISTORY
pleaded guilty on January 26, 2011, to possession with intent
to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. § 841(b)(1)(B) (Count 1); and knowingly using
and carrying a firearm during and in relation to, and
possession of the firearm in furtherance of, a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(Count 2). On June 17, 2011, Movant was sentenced to
incarceration for a period of 130 months, consisting of 70
months as to Count 1 and 60 months as to Count 2, to be
served consecutively. On June 3, 2015, Movant's sentence
was reduced pursuant to Amendment 782 to the United States
Sentencing Guidelines to 120 months, consisting of 60 months
as to Count 1 and 60 months as to Count 2, to be served
filed the within § 2255 motion on July 1, 2016.
Respondent United States of America filed a motion for
summary judgment on August 29, 2016. Also on August 29, 2016,
the court issued an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975),
advising Movant of the summary judgment procedures and the
possible consequences if he failed to respond adequately.
Movant filed no response to Respondent's motion.
contends that he is entitled to the benefit of the United
States Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court interpreted a portion of the Armed Career
Criminal Act (ACCA) that mandates an enhanced sentence for an
offender convicted of being a felon in possession of a
firearm, if the offender has three or more convictions for a
serious drug offense or violent felony. See 18
U.S.C. § 922(g)(1). Under 18 U.S.C. § 924(e)(1),
“a person who has three previous convictions by any
court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, . . .
shall be . . . imprisoned not less than fifteen
years[.]” Under § 924(e)(2)(B), the term
“violent felony” means:
any crime punishable by imprisonment for a term exceeding one
year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
Johnson, the Court determined that the language
known as the residual clause-i.e., “or otherwise
involves conduct that presents a serious potential risk of
physical injury to another”-is unconstitutionally
case, Movant pleaded guilty to using and carrying a firearm
in furtherance of a serious drug offense, and not a crime of
violence. Under 18 U.S.C. § 924(e)(2)(A),
(A) the term “serious drug offense” means-
(i) an offense under the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. 951 et seq.), or chapter 705 of title 46, for
which a maximum term of ...