United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
Ted Evan Doughty is an inmate in custody of the Federal
Bureau of Prisons. He currently is housed at USP-Coleman II
in Sumterville, Florida. 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
8, 2005, Movant pleaded guilty to bank robbery and aiding and
abetting a bank robbery, in violation of 18 U.S.C. §
2113(a) (Count 3 of superseding indictment filed Cr. No.
0:04-1033); and bank robbery, in violation of 18 U.S.C.
§ 2113(a) (Counts 1 and 2 of indictment filed in the
Western District of North Carolina and transferred to the
District of South Carolina as set forth in Cr. No.
0:05-0393). A presentence investigation report (PSR) was
prepared by the United States Probation Office. The PSR noted
that Movant has two prior convictions in 2002 and 2003 in the
North Carolina Superior Court, Charlotte, North Carolina, for
breaking and entering. ECF No. 108, ¶¶ 83, 87 in
Cr. No. 0:04-1033; ECF No. 65, ¶¶ 83, 87 in Cr. No.
0:05-0393. Movant's criminal history score was 5. Two
points were added pursuant to U.S.S.G. § 4A1.1(d)
because Movant was on state probation at the time of the
convictions in North Carolina. One additional point was added
pursuant to U.S.S.G. § 4A1.1(e) because Movant committed
the bank robberies less than two years after his release from
custody for a sentence received on July 17, 2003.
Movant's criminal history category was IV. However,
Movant was designated as a career offender based upon his
breaking and entering convictions. Movant's criminal
history category became VI.
provided for a base offense level of 20 as to each count.
Movant's offense level was increased two levels because
property of a financial institution was taken. A 1-level
increase was applied because each loss exceeded $10, 000 but
was less than $50, 000. Another 2 levels were added for
obstruction of justice, for an adjusted offense level of 25.
The combined adjusted offense level was 28. Because Movant
was designated as a career offender, his offense level under
U.S.S.G. § 4B1.1 became 32. Movant received no reduction
for acceptance of responsibility. On August 28, 2006, Movant
was sentenced under the U.S. Sentencing Guidelines to 250
months imprisonment, consisting of 240 months as to Count 3
in Cr. No. 0:04-1033; 240 months as to Count 1 in Cr. No.
0:05-0393 to run concurrently to Count 3 in Cr. No.
0:04-1033; and 240 months as to Count 2 in Cr. No. 0:04-1033,
of which 230 months were to run concurrently and 10 months
were to run consecutively to Count 3 in Cr. No. 0:04-1033 and
Count 1 in Cr. No. 0:05-0393. Judgment was entered August 31,
2006. The Court of Appeals for the Fourth Circuit affirmed
the convictions and sentences. See United States v.
Pilson, 228 F. App'x 273 (4th Cir. 2007).
filed a § 2255 motion on March 9, 2012. Respondent moved
to dismiss the § 2255 motion as untimely, which motion
was granted by order filed January 16, 2015. Upon
authorization from the Court of Appeals for the Fourth
Circuit, Movant, proceeding pro se, filed a successive §
2255 motion on June 24, 2016. Movant seeks the benefit of
Johnson v. United States, 133 S.Ct. 2551 (2015), in
which the Supreme Court held that the “residual
clause” of the Armed Career Criminal Act (ACCA) is
unconstitutionally vague. A supplemental § 2255 motion
was filed by counsel on Movant's behalf on July 1, 2016.
Counsel argued that Johnson applies with equal force
to the United States Sentencing Guidelines under which Movant
was sentenced and that his prior convictions for breaking and
entering do not qualify as predicate offenses under the
“residual clause” of U.S.S.G. § 4B1.2(a)(2).
December 2, 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 Sentencing Guidelines sentence under
Johnson. The Court decided Beckles on March
6, 2017. Respondent filed a motion to dismiss Movant's
§ 2255 motion on July 5, 2017. Movant filed a response
on July 7, 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
(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 a
“crime of violence” as any offense under federal
or state law, punishable by imprisonment for a term exceeding
one year that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the ...