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Downs v. United States

United States District Court, D. South Carolina

January 24, 2018

Thomas Lee Downs, Jr., Movant,
v.
United States of America, Respondent.

          ORDER AND OPINION

          MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE.

         Movant 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.[1] 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.

         FACTS AND PROCEDURAL HISTORY

         On May 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.

         The PSR 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.[2] 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).

         Movant 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.[3] 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.

         DISCUSSION

         A 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 felony” means

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.

         In 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 vague.

         Movant received an enhanced sentence not under the ACCA, but under the United States Sentencing Guidelines, which define ...


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