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United States v. Hughey

United States District Court, D. South Carolina, Columbia Division

February 27, 2018

United States of America,
v.
Tarren Ramone Hughey, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255 to vacate his sentence in light of Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015) and Welch v. United States, 578 U.S. __, 136 S.Ct. 1257 (2016). ECF No. 232. The Government filed a response in opposition to Defendant's § 2255 motion and a motion for summary judgment. ECF Nos. 240, 241. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. ECF No. 243. Defendant has not filed a response and the time to do so has passed.

         I. Background

         In November of 2012, Defendant was named in a nine-count indictment in this District. ECF No. 37. Defendant was charged in seven of the nine counts, including charges of conspiracy to possess with intent to distribute cocaine, conspiracy to commit Hobbs Act robbery, conspiracy to carry or possess a firearm in furtherance of a drug trafficking crime and a crime of violence, conspiracy to use a firearm in furtherance of a drug trafficking crime or a crime of violence, felon in possession of a firearm (2 counts), and possession with intent to distribute cocaine base. Id.

         On April 4, 2013, Defendant entered into a written plea agreement to plead guilty to Count Two of the indictment, conspiracy to commit Hobbs Act Robbery. ECF No. 91. Defendant appeared before the court the same day and entered his plea of guilty. ECF No. 93.

         A Pre-Sentence Report (PSR) concluded Defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense, and therefore was classified as a career offender pursuant to U.S.S.G. §4B1.1(b). ECF No. 144. Among Defendant's predicate offenses were strong arm robbery, conspiracy to distribute cocaine, burglary, assault on a corrections officer, and second degree burglary (2 counts). Id.

         The PSR determined that Defendant's adjusted offense subtotal, for purposes of calculating sentencing guidelines, was 32 after appropriate offense enhancements, not including the career offender enhancement. Id. The PSR then considered the career offender enhancement; however, the resulting offense level was also 32: the same as the offense level without taking into consideration Defendant's career offender status. Id. Therefore, Defendant's guideline range was the same regardless of whether the career offender guideline was applied or not. Similarly, the PSR found Defendant's criminal history score was 28, resulting in a criminal history category of VI, the same as under the career offender guideline. After three levels for acceptance of responsibility, Defendant's total offense level of 29 and criminal history score of VI resulted in a guideline range of 151-188 months. Id.

         Defendant filed an objection to the PSR, arguing the strong arm robbery conviction should not count as an adult conviction, because it occurred when he was 16 years old. ECF No. 144-1. However, the probation officer explained this conviction was properly counted for criminal history points and as a predicate for career offender status. Defendant withdrew his objection at sentencing.

         On July 9, 2013, Defendant appeared for sentencing. ECF No. 147. The Government filed a motion seeking an upward departure to adequately account for Defendant's criminal history (ECF No. 145) which Defendant opposed, and Defendant orally requested a downward variance. The court denied both requests and sentenced Defendant to a guideline sentence of 188 months incarceration, followed by three years supervised release. Defendant filed a notice of appeal to the Fourth Circuit on July 11, 2013. ECF No. 158. On April 4, 2014, the Fourth Circuit affirmed the decision of the District Court. ECF No. 195.

         Defendant now argues he should be resentenced without career offender status under Johnson. ECF No. 232. The Government opposes his motion, arguing Defendant's guideline range would be the same without application of the career offender guideline. ECF No. 240. In other words, Defendant's guideline range was 151-188 months with or without career offender status, and Defendant's sentence of 188 months is within that range. Id.

         II. Impact of Recent Supreme Court Decisions

         On June 26, 2015, the Supreme Court held that the residual clause of Armed Career Criminal Act violates due process as it “denies fair notice to defendants and invites arbitrary enforcement by judges.” 576 U.S. at __, 135 S.Ct. at 2557. The decision in Johnson means the residual clause cannot support a defendant's classification as an armed career criminal, and that predicate offenses must qualify under the force clause or the enumerated clause in order to be considered valid predicates for armed career criminal status. On April 18, 2016, the Supreme Court decided Welch v. United States, 578 U.S. __, 136 S.Ct. 1257 (2016). In that case, the Court held that the newly established right recognized in Johnson is retroactive to cases on collateral review.

         However, on March 6, 2017, the Supreme Court issued an opinion in Beckles, holding “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Beckles v. United States, 580 U.S. __, 137 S.Ct. 886, 890 (2017). Therefore, the former residual clause in §4B1.2(a)(2) of the sentencing guidelines[1] is not void for vagueness. Id. at 892.

         III. ...


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