United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE .
Daniel Ryan Pilson is an inmate in custody of the Federal
Bureau of Prisons. He currently is housed at FCI-McDowell in
Welch, West Virginia. 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
January 30, 2006, Movant pleaded guilty to conspiracy to
escape and assist in the escape of federal detainees from a
designated detention facility, in violation of 18 U.S.C.
§ 371. A presentence investigation report (PSR) was
prepared by the United States Probation Office. The PSR noted
that Movant has three prior convictions in 2002 and 2003 in
the North Carolina Superior Court, Charlotte, North Carolina,
for breaking and entering. ECF No. 103, ¶¶ 23, 29,
32. The PSR also noted that Movant has prior convictions for
bank robbery. Id. ¶ 32, 33. Movant's
criminal history score was 13. Two points were added pursuant
to U.S.S.G. § 4A1.1(d) because Movant was in federal
custody awaiting sentencing when the offense was committed.
One additional point was added pursuant to U.S.S.G. §
4A1.1(e) because Movant committed the offense less than two
years after his release from custody for a sentence received
on May 13, 2003. Movant's criminal history category was
IV. However, Movant was designated as a career offender,
Movant's criminal history category became VI.
provided for a base offense level of 13. Movant's offense
level was increased two levels because property of a
financial institution was taken. Because Movant was
designated as a career offender, his offense level under
U.S.S.G. § 4B1.1 became 17. Movant received a
three-level reduction for acceptance of responsibility, for a
total offense level of 14. On June 26, 2006, Movant was
sentenced under the U.S. Sentencing Guidelines to 46 months
imprisonment, to run consecutively to sentences imposed in
Cr. No. 0:04-1033 and Cr. No. 0:05-0393. Judgment was entered
July 6, 2006. The Court of Appeals for the Fourth Circuit
affirmed the conviction and sentence. See United States
v. Pilson, 228 F. App'x 273 (4th Cir.
filed a § 2255 motion on May 17, 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 filed a successive § 2255 motion on June
27, 2016, and July 8, 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 qualifying as predicate offenses under the
“residual clause” of U.S.S.G. § 4B1.2(a)(2).
The government filed a motion for summary judgment on August
January 10, 2017, 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 supplemental response in support of
its motion on September 13, 2017. Movant filed a response on
September 20, 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 ...