United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE.
Thomas Lee Downs is an inmate in custody of the Bureau of
Prisons. He currently is housed at FCI-Fort Dix, Joint Base
MDL, New Jersey. On June 24, 2016, Movant, proceeding pro se,
filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence. Respondent United States of
America filed a response in opposition on September 6, 2016,
to which Movant, who is now represented by counsel, filed a
reply on April 18, 2017. Respondent filed additional
attachments to its response on May 8, 2017.
AND PROCEDURAL HISTORY
27, 2003, Movant pleaded guilty to distribution and
possession with intent to distribute five grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(Counts 1 and 2), and distribution and possession with intent
to distribute 50 grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (Count 3). A presentence
investigation report (PSR) was prepared by the United States
Probation Office (USPO). The PSR noted that, among other
offenses, Movant has state court drug convictions for
distribution of cocaine, transportation of cocaine,
trafficking in cocaine, and conspiracy to distribute cocaine
for which he was sentenced on May 3, 1989. The PSR further
noted that Movant has a state court conviction for assault
and battery of a high and aggravated nature (ABHAN) for which
he was sentenced in 1998. Movant's criminal history score
was four, to which two points were added because Movant
committed the federal drug offenses while on state probation,
for a total of six and a criminal history category of III.
However, because Movant has two prior felony convictions
involving a crime of violence or a controlled substance
offense, Movant was denominated as a career offender.
Movant's criminal history category became VI.
See U.S.S.G. § 4B1.1.
attributed 122.1 grams of cocaine to Movant, for a base
offense level of 32. Because Movant was considered to be a
career offender, he received an adjusted offense level of 37.
See U.S.S.G. § 4B1.1(a). Movant received a
three-level reduction for acceptance of responsibility. His
total offense level became 34. Movant's guidelines range
was 262 to 327 months imprisonment. Movant was sentenced to
incarceration for a period of 262 months. Judgment was
entered on August 25, 2003. The Court of Appeals for the
Fourth Circuit affirmed. United States v. Downs, 91
F. App'x 311 (4th Cir. 2004).
contends he is not a career offender pursuant to Johnson
v. United States, 570 U.S. 521 (2015), wherein the
Supreme Court found the “residual clause” of the
Armed Career Criminal Act to be unconstitutionally
vague. Relying on Johnson, Movant argues
his conviction for ABHAN no longer is considered to be a
violent felony. See United States v. Hemingway, 734
F.3d 323, 335 (4th Cir. 2013). Because
Hemingway does not apply retroactively to grant
Movant relief, Movant further contends that his conviction
for ABHAN falls under the “residual clause” of
U.S.S.G. § 4B1.2, which contains similar language as
that found unconstitutional in Johnson. According to
Movant, ABHAN cannot serve as a predicate offense and he is
entitled to resentencing.
Movant may bring a claim within one year of the date on which
a right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.
28 U.S.C. § 2255(f)(3). As relevant here, in
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 ...