United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
matter is before the Court on Petitioner's [ECF No. 136]
motion to vacate pursuant to 28 U.S.C. § 2255. Relying
on Johnson v. United States, 135 S.Ct. 2551 (2015),
Petitioner challenges his career offender designation under
United States Sentencing Guideline § 4B1.1.
30, 2017, the government filed a response and motion to
dismiss arguing Petitioner's Johnson claim of
misapplication of the Sentencing Guidelines fails in light of
Beckles v. United States. On May 31, 2017,
Petitioner, through counsel, filed a response to the
government's motion to dismiss. For the reasons stated
below, the Court grants the government's motion to
dismiss, dismisses Petitioner's motion to vacate, and
dismisses this case with prejudice.
October 2, 2008, Petitioner pled guilty to using or carrying
a firearm during and in relation to a drug trafficking crime
in violation of 18 U.S.C. § 924(c). The presentence
investigation report (“PSR”) prepared by the U.S.
Probation Office determined that Petitioner was a career
offender under U.S.S.G. § 4B1.1. Petitioner's
resulting guideline range was 262 to 327 months in prison.
sentencing hearing was held on January 23, 2009. The Court
granted Petitioner a slight variance and sentenced him to a
240 month term of imprisonment. Petitioner did not file a
first motion to vacate under 28 U.S.C. § 2255 was
dismissed as untimely on January 25, 2012. On June 27, 2016,
the Fourth Circuit Court of Appeals granted authorization for
Petitioner to file a second or successive § 2255 motion
to vacate following Johnson v. United States, 135
S.Ct. 2551 (2015). Petitioner filed the instant motion to
vacate on June 27, 2016.
in federal custody may attack the validity of their sentences
pursuant to 28 U.S.C. § 2255. In order to move the court
to vacate, set aside, or correct a sentence under §
2255, a petitioner must prove that one of the following
occurred: (1) a sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such a sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). “The writ of habeas corpus
and its federal counterpart, 28 U.S.C. § 2255,
‘will not be allowed to do service for an appeal.'
(internal citation omitted). For this reason,
nonconstitutional claims that could have been raised on
appeal, but were not, may not be asserted in collateral
proceedings. (internal citations omitted) Even those
nonconstitutional claims that could not have been asserted on
direct appeal can be raised on collateral review only if the
alleged error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of
justice'”. Stone v. Powell, 428 U.S. 465,
n. 10 (1976); see also United States v. Boyd, No.
02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002)
(“Non-constitutional claims that could have been raised
on direct appeal . . . may not be raised in a collateral
proceeding under § 2255.”).
claims he was improperly designated a career offender under
the Sentencing Guidelines in that his prior conviction for
Aggravated Assault from the state of Arkansas is no longer a
crime of violence. The government argues that
Petitioner's motion to vacate should be dismissed because
the application of Johnson v. United States to the
Sentencing Guidelines is not retroactive on collateral review
as held in Beckles v. United States, 137 S.Ct. 886
United States v. Foote, 784 F.3d 931, 940 (4th Cir.
2015), the Fourth Circuit held that a § 2255 motion to
vacate that was based on a subsequently-nullified career
offender designation was not a fundamental defect, as
required to challenge a sentence on a motion to vacate.
Foote, 784 F.3d at 940. Applying Foote to
the instant case, Petitioner's claim that he was
improperly designated a career offender based on a prior
offense that is no longer a crime of violence is not
cognizable on collateral review. Petitioner has failed to
demonstrate a fundamental defect or miscarriage of justice.
Petitioner was sentenced below his advisory guideline range
and below the statutory maximum of Life imprisonment.
as the Supreme Court held in Beckles v. United
States, 137 S.Ct. 886 (2017), the Sentencing Guidelines
are not subject to a vagueness challenge under the Due
Process Clause and the residual clause found in former §
4B1.2(a)(2) of the Sentencing Guidelines is not
void-for-vagueness. Beckles, 137 S.Ct. at 895
Accordingly, Petitioner's reliance on Johnson,
which dealt with the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is misplaced
and his challenge to his sentencing enhancement under the
United States Sentencing Guidelines fails.
foregoing reasons, Petitioner's motion to vacate under 28