United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge
Vader McGowan 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.
AND PROCEDURAL HISTORY
April 21, 2006, Movant pleaded guilty to conspiracy to
distribute 50 grams or more of methamphetamine and 50 grams
or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §
846 (Count One); and creating a substantial risk to human
life while manufacturing and attempting to manufacture
methamphetamine, in violation of 21 U.S.C. § 858 (Count
Six). A presentence investigation report (PSR) was prepared
by the United States Probation Office. The PSR noted that
Movant has two prior convictions for purposes of career
offender status: a conviction for distribution of cocaine in
the Aiken County, South Carolina, General Sessions Court in
2001; and a conviction for burglary (2nd Degree)
in Saluda County, South Carolina, General Sessions Court in
2000. ECF No. 164, ¶¶ 27, 28. Movant's criminal
history score was 2. Two points were added pursuant to
U.S.S.G. § 4A1.1(d) because Movant was on state
probation when the instant offense was committed.
Movant's criminal history category was III. However,
Movant was designated as a career offender based on his
convictions for distribution of cocaine and burglary.
Movant's criminal history category became VI.
provided for a base offense level of 32. Movant's offense
level was increased six levels pursuant to U.S.S.G. §
2D1.1(b)(6)(C) because the offense created a substantial risk
of harm to four minors living in the home. Movant also
received a two-level increase under U.S.S.G. § 3B1.1(c)
because he was an organizer, leader, manager, or supervisor
in a criminal activity. Movant's adjusted offense level
became 40. Pursuant to U.S.S.G. § 4B1.1, Movant's
offense level was 37 because he was designated as a career
offender; however, the higher offense level of 40 applied.
Movant received a three-level reduction for acceptance of
responsibility, for a total offense level of 37. Movant's
guidelines range was 360 months to life incarceration.
December 19, 2006, Movant appeared for sentencing. Respondent
orally moved for a variance, which was granted. Movant was
sentenced under the U.S. Sentencing Guidelines to 240 months
imprisonment, consisting of 240 months as to Count One and
120 months as to Count Six, to run concurrently. Judgment was
entered on December 28, 2006.
through counsel, filed his § 2255 motion on June 20,
2016, seeking the benefit of Johnson v. United
States, 133 S.Ct. 2551 (2015). In Johnson, the
Supreme Court held that the “residual clause” of
the Armed Career Criminal Act (ACCA) is unconstitutionally
vague. Counsel argued that Johnson applies with
equal force to the United States Sentencing Guidelines under
which Movant was sentenced and that his prior conviction for
burglary, 2nd Degree, does not qualify as a
violent felony under the “residual clause” of
U.S.S.G. § 4B1.2(a)(2).
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 Sentencing Guidelines sentence under
Johnson. The Court decided Beckles on March
filed a motion for summary judgment on July 5, 2017. Movant
filed a response on August 23, 2017. The matter now is ripe
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 ...