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United States v. Harris

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

April 2, 2018

United States of America,
v.
Tony Oneal Harris, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         On June 22, 2016, Defendant filed a motion under 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. 1232. 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 for summary judgment on July 7, 2017. ECF Nos. 1247, 1248. On July 19, 2017, Defendant filed his response. ECF No. 1250.

         I. Background

         Defendant was charged in a superseding indictment entered December 12, 2000. ECF No. 319. Defendant entered into a written plea agreement on July 12, 2001, agreeing to plead guilty to count one of the superseding indictment, conspiracy to possess with intent to distribute one kilogram or more of heroin and 50 grams or more of crack. ECF No. 735. Defendant entered a guilty plea the same day. ECF No. 735.

         A Pre-Sentence Report (PSR) concluded Defendant was a career offender based on the following convictions: New York second degree robbery and trafficking in fentanyl. Defendant's guideline range was calculated to be 262-326 months. The Government's motion for downward departure was granted, and Defendant was sentenced to 235 months and ten years of supervised release. ECF No. 912. Defendant did not appeal. On June 22, 2016, the instant motion was filed. ECF No. 1232.

         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[1]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 sentenced under a mandatory guideline scheme. Defendant was sentenced on November 29, 2001, before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which rendered the Guidelines advisory. As Defendant was sentenced under the mandatory Guidelines, he argues Johnson should apply because the mandatory Guidelines “fix[ed] the permissible range of sentences.” ECF No. 1250 at 5 (citing Beckles, 137 S.Ct. at 892). He also argues his motion is timely under § 2255(f)(3), and his New York robbery conviction is not a crime of violence under the mandatory Guidelines.

         The Government argues that Defendant's motion is untimely because he cannot avail himself of § 2255(f)(3) or any of the other dates in § 2255(f). ECF No. 1247.

         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)[2] because the Supreme Court has not recognized a new right entitling him to relief. United States v. Thilo Brown, 868 F.3d 297 (4th Cir. 2017) (rehearing and rehearing en banc denied Feb. 26, 2018). Therefore, defendants like Brown, who filed § 2255 motions within a year of the Johnson decision, are untimely unless they can qualify under one of the other limitations periods. Id. at 303-04.

         As noted by the Government, Defendant's conviction became final more than one year ago[3], and neither § 2255(f)(2) or (4) apply to this case. Pursuant to Brown, neither does § (f)(3) apply in Defendant's case: the Supreme Court has not recognized a new right that would entitle him to relief, and the Johnson decision does not encompass Defendant's claim. Therefore, because Defendant is unable to avail himself of the limitations period in § (f)(3), his motion is untimely.

         IV. ...


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