United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
24, 2016, Defendant filed a pro se 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. 260. The Federal Public Defender
filed a supplemental motion on July 15, 2016. ECF No. 267. On
July 29, 2016, the Government moved to stay consideration of
the § 2255 motion pending the decision by the United
States Supreme Court in Beckles v. United States,
No. 15-8544 (2016). ECF No. 269. On August 8, 2016, the court
stayed this action pending a decision in Beckles.
ECF No. 279. After Beckles was decided, the
Government filed a motion for summary judgment. ECF No. 312.
Defendant filed a response on July 7, 2017. ECF No. 314
November of 2012, Defendant was named in a nine-count
indictment in this District. ECF No. 37. Defendant was
charged in five of the nine counts, including charges of
conspiracy to possess with intent to distribute cocaine
(count 1), conspiracy to commit Hobbs Act robbery (count 2),
conspiracy to carry or possess a firearm in furtherance of a
drug trafficking crime and a crime of violence (count 3), use
of a firearm in furtherance of a drug trafficking crime and a
crime of violence (count 4), and felon in possession of a
firearm (count 7). Id.
went to trial and was convicted on all counts. ECF No. 126. A
Pre-Sentence Report (PSR) concluded Defendant had at least
two prior felony convictions for crimes of violence, and
therefore was classified as a career offender pursuant to
U.S.S.G. §4B1.1(b). ECF No. 166. Among Defendant's
predicate offenses were armed robbery; pointing and
presenting; and assault and battery, 2nd degree. Id.
at ¶¶ 66, 67, 68.
determined that Defendant's adjusted offense subtotal,
for purposes of calculating sentencing guidelines, was 34
after appropriate offense enhancements, not including the
career offender enhancement. Id. at ¶ 106. The
PSR then considered the career offender enhancement; however,
the resulting offense level was also 34: the same as the
offense level without taking into consideration
Defendant's career offender status. Id. at
¶ 107. Defendant's total criminal history score was
9, establishing a criminal history category of IV; however,
due to Defendant's career offender status, his criminal
history category was increased to VI. Id. at
¶¶ 70, 71. Because Defendant was convicted of
§ 924(c) and determined to be a career offender,
U.S.S.G. § 4B1.1 notes the applicable guideline range
shall be the greater of the range resulting by adding the
mandatory minimum consecutive penalty required by §
924(c) to the otherwise applicable guideline range or the
guideline range determined using the table in §
4B1.1(c)(3). Id. at ¶ 111. Defendant's
guideline range based on his total offense level of 34 and
criminal history category VI was 262 to 327 months, plus 60
months for the § 924(c) conviction, resulting in a total
range of 322-387 months. Id. The guideline range in
the table at section (c)(3), with no acceptance of
responsibility, is 360 months to life imprisonment.
Id. Therefore, that became the applicable guideline
filed an objection to the PSR, objecting to “any facts
inconsistent with his plea of not guilty and jury
trial.” ECF No. 166-1 at 2. Defendant did not argue
this objection further, but submitted it only to preserve
appellate issues. Id. The Government also lodged an
objection, arguing Defendant should be enhanced two points
for perjury due to testimony at trial that was inconsistent
with a statement made at the time of his arrest. Id.
August 8, 2013, Defendant appeared for sentencing. ECF No.
167. The court sustained the Government's objection to
the PSR and overruled Defendant's objection, but granted
Defendant's motion for variance. Id. Defendant
was sentenced to 270 months incarceration, followed by four
years supervised release. ECF No. 170. Defendant filed a
notice of appeal to the Fourth Circuit on August 11, 2013.
ECF No. 174. On March 26, 2014, the Fourth Circuit affirmed
the decision of the District Court. ECF No. 194. Defendant
filed a previous § 2255 motion on February 13, 2015. ECF
No. 202. He challenged the use of his pointing and presenting
conviction as a career offender predicate offense and argued
counsel provided ineffective assistance when he failed to
challenge Defendant's career offender designation, among
other grounds. Id. After full briefing, the court
dismissed Defendant's claims with prejudice. ECF No. 229.
21, 2016, Defendant received permission from the Fourth
Circuit to file a second or successive § 2255 motion.
ECF No. 245. Defendant's pro se motion was filed
on June 24, 2016 (ECF No. 260), and a supplemental motion was
filed on July 15, 2016 (ECF No. 267). This motion is now
fully briefed and ripe for resolution.
Impact of Recent Supreme Court Decisions
26, 2015, the Supreme Court held the residual clause of Armed
Career Criminal Act (“ACCA”) violates due process
as it “denies fair notice to defendants and invites
arbitrary enforcement by judges.” Johnson, 576
U.S. at __, 135 S.Ct. at 2557. 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, holding the newly
established right recognized in Johnson retroactive
to cases on collateral review.
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 Guidelinesis not void for vagueness. Id. at