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United States v. Hemphill

United States District Court, D. South Carolina, Rock Hill Division

March 26, 2018

United States of America,
Antonio Jeron Hemphill, Defendant.


          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Opinion and Order Defendant seeks relief pursuant to 28 U.S.C. § 2255, arguing that in light of the Supreme Court's holdings in 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), he is no longer a career offender and should be resentenced.[1] ECF Nos. 377, 379. After a stay pending the outcome of Beckles v. United States, 580 U.S.___, 137 S.Ct. 886 (2017), the Government filed a response in opposition and a motion to dismiss on May 18, 2017. ECF Nos. 393, 394. On June 23, 2017, Defendant filed his response. ECF No. 399. On January 20, 2017, while the Beckles stay was in effect, Defendant was granted clemency by President Obama, commuting the total sentence of imprisonment imposed to expire on January 19, 2019. ECF No. 392.

         I. Background

         On March 18, 2004, Defendant was indicted for: 1) conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(A), and § 846; and 2) possession with intent to distribute cocaine base and cocaine, in violation of §§ 841(a)(1) and (b)(1)(A). ECF No. 22. On July 28, 2004, a superseding indictment was returned by the Grand Jury, noting the total quantity of cocaine base attributable to Defendant was 150 grams or more, and the total quantity of cocaine attributable to Defendant was 200 grams or more. ECF No. 78 at 3-4.

         Defendant entered into a written plea agreement on September 30, 2004, agreeing to plead guilty to count one of the superseding indictment (the conspiracy charge). ECF No. 96. In the plea agreement, Defendant stipulated he was a career offender and that the guideline range applicable after acceptance of responsibly was 262-327 months. Id. at ¶ 4. Defendant also acknowledged he had two prior felony drug convictions subject to 21 U.S.C. § 851 enhancement, and the Government agreed to move to withdraw one of the § 851 enhancements, reducing the statutory minimum sentence from life to 20 years. Id. at ¶ 10. Defendant entered a guilty plea on October 4, 2004. ECF No. 99.

         A Pre-Sentence Report (PSR) concluded Defendant was a career offender pursuant to U.S.S.G. §4B1.1(b). ECF No. 144. The PSR found Defendant's prior convictions for Failure to Stop for a Blue Light (2 counts), and Possession with Intent to Distribute Crack Cocaine within proximity of a school were predicate convictions for career offender purposes. Id. at ¶¶ 35, 37, 38. Defendant's guideline range was calculated to be 262-327 months. Id. at ¶ 58. Defendant objected to Paragraph 30 of the PSR, noting the Government had withdrawn one of its enhancements under § 851, and therefore he should not be considered a career offender. As discussed at sentencing, Defendant was conflating the § 851 enhancement and career offender status, and this objection was overruled. ECF No. 391 at 5:25-8:12.

         On March 14, 2005, Defendant appeared for sentencing. The court sentenced Defendant to 262 months' imprisonment and a ten-year term of supervised release. ECF No. 145. Defendant did not appeal. Defendant filed an initial § 2255 motion on January 1, 2012. ECF No. 277. This court granted the Government's motion for summary judgment on April 18, 2012. ECF No. 292. Defendant appealed, but the Fourth Circuit dismissed his appeal and denied a certificate of appealability. ECF No. 316. The Fourth Circuit granted Defendant permission to file the instant § 2255 motion on June 27, 2016. ECF No. 378.

         II. Johnson and Beckles

         On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) violates due process as it “denies fair notice to defendants and invites arbitrary enforcement by judges.” 576 U.S. at, ___ 135 S.Ct. 2551 (2015). By holding the ACCA residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those that qualify under the enumerated or force clauses. The ACCA residual clause can no longer support a defendant's classification as an armed career criminal. On April 18, 2016, the Supreme Court decided Welch v. United States, 578 U.S.___, 136 S.Ct. 1257 (2016), holding the newly established right recognized in Johnson retroactive to cases on collateral review.

         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, 137 S.Ct. at 890. Therefore, the residual clause in §4B1.2(a)(2) of the former sentencing Guidelines[2]is not void for vagueness. Id. at 892.

         III. Discussion

         Defendant argues his career offender status is impacted by Johnson and excepted from the holding in Beckles as he was purportedly sentenced under a mandatory guideline scheme. Defendant was sentenced about two months after the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which rendered the Guidelines advisory. However, he argues “it is clear from the sentencing transcript that the court treated the guidelines as if they were mandatory at Hemphill's sentencing.” ECF No. 399.

         Although the Government appears to concede Defendant was sentenced under a mandatory guideline scheme, it argues his §2255 motion fails for procedural reasons and on the merits. ECF No. 393 (“Hemphill's challenge to his mandatory guidelines sentence fails . . .”). The Government lists seven reasons why Defendant is not entitled to relief: (1) Defendant accepted clemency, “foreclosing further judicial relief;” (2) the Supreme Court has not extended Johnson to the mandatory guidelines, so § 2255(f)(3) does not apply and Defendant's motion is untimely; (3) Defendant's motion is successive, and he cannot satisfy § 2255(h)(2), which requires the Supreme Court to declare the collateral availability of Johnson's application to the mandatory guidelines; (4) the extension of Johnson would not be retroactive under Teague v. Lane, 489 U.S. 288 (1989); (5) a vagueness challenge to the mandatory guidelines is procedurally defaulted; (6) mandatory guidelines are not subject to a vagueness challenge; and (7) Defendant's predicate offenses do not depend on the residual clause. Id.

         Beckles applies to advisory guideline sentences only, specifically leaving open the question of whether the residual clause in the mandatory Guidelines would be void for vagueness. Beckles, 137 S.Ct. at 894 (“The advisory Guidelines do not implicate the twin concerns underlying vagueness doctrine - providing notice and preventing arbitrary enforcement.”); Id. at 903 (Kennedy, concurring) (“The Court's adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in United States v. Booker, 543 U.S. 220 (2005) - that is, during the period in which the Guidelines did ‘fix the permissible range of sentences, ' ante, at 892 - may mount vagueness attacks on their sentences.”). However, the Fourth Circuit has decided a § 2255 motion seeking to attack a defendant's sentence imposed under the mandatory Guidelines does not fall under the statute of limitations in § 2255(f)(3)[3] because the Supreme Court has not recognized a new right entitling him to relief. United ...

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