United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
16, 2016, Defendant filed a pro se motion under 28
U.S.C. § 2255 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. 1361. The Government filed a
motion to dismiss and a memorandum in support/response in
opposition to Defendant's § 2255 motion. ECF No.
1388. Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised Defendant of the response
procedure and the consequences if he failed to respond. ECF
No. 1389. The Government filed additional attachments to its
motion to dismiss on July 28, 2016. ECF No. 1394. Defendant
wrote a letter to the court, inquiring as to the reason for
the Roseboro order, as he did not know “why
the Government filed this motion against me.” ECF No.
1400. The Clerk of Court responded by letter, noting the
Roseboro order was sent because the Government filed
a motion to dismiss his § 2255 motion. ECF No. 1401.
Defendant did not file a response, and the time to do so has
February 8, 2009, Defendant entered into a written plea
agreement to plead guilty to counts 1 and 13 of the
Superseding Indictment: conspiracy to possess with intent to
distribute cocaine and cocaine base, and possession of a
firearm during and in connection with a drug trafficking
crime, respectively. ECF No. 618. As a part of the plea
agreement, one Information pursuant to 21 U.S.C. § 851
was dropped, and Defendant waived his right to file a motion
for relief under § 2255 except as to claims of
ineffective assistance of counsel and/or prosecutorial
misconduct. Thereafter, Defendant appeared before this court
and pled guilty. ECF No. 626.
Pre-Sentence Report (PSR) concluded Defendant had two prior
felony convictions for controlled substance offenses: a 2001
conviction for possession with intent to distribute crack
cocaine, and a 2003 conviction for possession with intent to
distribute crack cocaine. ECF No. 857 ¶¶ 55, 61.
Therefore, he was classified as a career offender pursuant to
U.S.S.G. §4B1.1(b). Defendant's guideline range for
count 1 was 262-327 months, with a six month consecutive
sentence required for count 13.
13, 2010, Defendant appeared for sentencing. ECF No. 852. The
court sentenced Defendant to 322 months imprisonment,
consisting of 262 months on count 1 and 60 months on count
13, to be served consecutively. ECF No. 854.
Johnson and Beckles
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.
March 6, 2017, the Supreme Court issued an opinion in
Beckles, holding “the advisory Guidelines are
not subject to vagueness challenges under the Due Process
clause.” Beckles, 580 U.S. __, 137 S.Ct. 886,
890 (2017). Therefore, the residual clause in
§4B1.2(a)(2) of the former sentencing
guidelines is not void for vagueness. Id. at
has two predicate convictions that qualify him for the career
offender enhancement, and both are controlled substance
offenses. Johnson and Welch deal with the
ACCA's definition of violent felony, and Beckles
concerns the career offender guideline's definition of
crime of violence. None of these cases address predicate
convictions based on drug offenses. Accordingly, Defendant
has two qualifying predicate drug offenses for the career
offender enhancement and is not entitled to relief.
because Johnson and Beckles do not apply to
Defendant's case, his motion is untimely. A 1-year period
of limitation applies to motions under § 2255.
limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes