United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE
Isaac Benton Armstead, IV, is an inmate in custody of the
Federal Bureau of Prisons. He currently is housed at
FCI-Oakdale in Oakdale, Louisiana. This matter is before the
court on Movant's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, as amended.
FACTS AND PROCEDURAL HISTORY
August 6, 2008, Movant pleaded guilty to conspiracy to
possess with intent to distribute and to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C. §
846. A presentence investigation report (PSR) was prepared by
the United States Probation Office. The PSR noted that Movant
has a prior conviction for assault and battery of a high and
aggravated nature in the court of General Sessions for
Orangeburg County, South Carolina. ECF No. 107, ¶ 41. He
also has a prior conviction for resisting arrest and
distribution of crack in the Court of General Sessions for
Orangeburg County, South Carolina. Id. ¶ 42.
Movant's criminal history score was 4, for a criminal
history category of III. However, Movant was designated as a
career offender based upon his prior drug offense and prior
crime of violence. Therefore, Movant's criminal history
category became VI.
provided for a base offense level of 36. Because Movant was
designated as a career offender, his offense level under
U.S.S.G. § 4B1.1 became 37. Movant received no reduction
for acceptance of responsibility. Accordingly, Movant's
total offense level was 37. On May 27, 2009, Movant was
sentenced under the U.S. Sentencing Guidelines to 360 months
imprisonment. Judgment was entered May 29, 2009. On January
14, 2011, Movant's sentence was reduced pursuant to Fed.
R. Crim. P. 35(b) to 262 months incarceration.
filed a § 2255 motion on October 2, 2014. Respondent
moved for summary judgment, which motion was granted by order
filed May 19, 2015. Movant filed a successive § 2255
motion on July 27, 2015, seeking the benefit of Johnson
v. United States, 133 S.Ct. 2551 (2015), wherein the
Supreme Court found the “residual clause” of the
Armed Career Criminal Act to be unconstitutionally vague.
Respondent filed a motion for summary judgment on August 24,
2015, asserting (1) Movant's § 2255 motion is
successive and untimely; (2) Johnson stated a
procedural rule not retroactive on collateral review; and (3)
Movant's motion is barred by waiver. On August 24, 2015,
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 a response in opposition on November 2, 2015.
24, 2016, the Court of Appeals for the Fourth Circuit
authorized Movant to file a second or successive application
for relief under § 2255, stating that he had made a
prima facie showing that Johnson may apply to his
case. Counsel filed § 2255 motions on Movant's
behalf, arguing that the Court's interpretation of the
residual clause applies equally to the residual clause in
§ 4B1.2(a)(2) of the Guidelines. On November 29, 2016,
upon motion of Respondent, the court stayed the matter
pending disposition of Beckles v. United States, 137
S.Ct. 886 (2017), a case wherein a defendant challenged his
Guidelines sentence under Johnson. The Court decided
Beckles on March 6, 2017. Respondent filed a motion
to dismiss Movant's § 2255 motion on June 7, 2017.
Movant filed a response in opposition on June 14, 2017. The
matter now is ripe for adjudication.
Johnson the Supreme Court addressed the Armed Career
Criminal Act of 1984 (ACCA), which 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.
Under 18 U.S.C. § 924(e)(2)(B), the term “violent
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
received an enhanced sentence not under the ACCA, but under
the United States Sentencing Guidelines, which define ...