United States District Court, D. South Carolina, Columbia Division
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
and Order Defendant seeks relief pursuant to 28 U.S.C. §
2255, arguing that in light of the Supreme Court's
holding 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 an armed
career criminal or a career offender and should be
resentenced. ECF No. 164. Defendant filed a supplement
to his § 2255 motion on July 19, 2016. ECF No. 168. The
Government filed a motion to dismiss or for summary judgment
on August 24, 2016. ECF No. 173. On September 6, 2016,
Defendant filed his response. On September 8, 2016, this
court entered an order holding Defendant's § 2255
motion in abeyance pending a decision in Beckles v.
United States, 580 U.S., 137 S.Ct. 886 (2017). ECF No.
175. After Beckles was decided, the Government filed a
response in support of its motion to dismiss or for summary
judgment. ECF No. 176. Defendant filed a reply on April 4,
2017. ECF No. 177. On April 5, 2017, this court ordered the
Government to respond to a new argument advanced in
Defendant's latest filing. ECF No. 178. The Government
filed its response on April 19, 2017. ECF No. 179. The court
entered a text order on April 20, 2017, ordering the parties
to consider certain cases regarding the concurrent sentence
and sentence packaging doctrines and to file further briefing
as needed. ECF No. 180. The Government filed its
response on May 4, 2017 (ECF No. 181), and Defendant filed
his response on May 12, 2017 (ECF No. 182). This court set a
hearing date of May 30, 2018. ECF No. 183. On May 29, 2018,
the Government filed a further response in support. ECF No.
February 19, 2008, Defendant was indicted for: (1) conspiracy
to possess with intent to distribute cocaine, cocaine base,
and marijuana, in violation of 21 U.S.C. §§ 841
(a)(1), (b)(1)(B), (b)(1)(D) and § 846; (2) possession
with intent to distribute cocaine base, in violation of
§§ 841(a)(1) and (b)(1)(B); (3) using and carrying
a firearm during and in relation to, and possessing a firearm
in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c); (4) possession with intent to
distribute cocaine base, cocaine, marijuana, and
methamphetamine, in violation of §§ 841(a)(1),
(b)(1)(B), (b)(1)(C), and (b)(1)(D); (5) felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1),
924(a)(2), and 924(e), and (6) possessing a firearm with the
serial No. removed, obliterated, or altered in violation of
§ 922(k) and 924(a)(1). ECF No. 11.
February 20, 2008, the Government filed an Information to
establish prior conviction under 21 U.S.C. § 851,
subjecting Defendant to increased penalties based on three
prior drug convictions. ECF No. 16. The Government also filed
an Information pursuant to § 924(e), notifying Defendant
he was subject to increased penalties under the Armed Career
Criminal Act. ECF No. 17. A Superseding Indictment was
entered on March 20, 2008. ECF No. 35.
entered into a written plea agreement on August 11, 2008,
agreeing to plead guilty to counts two and five of the
Superseding Indictment (possession with intent to distribute
and felon in possession, respectively). ECF No. 63. In the
plea agreement, Defendant stipulated he had at least two
prior felony drug convictions, and agreed not to contest the
Information filed pursuant to § 851. Id. at
¶ 10. The Government agreed to dismiss the remaining
counts of the indictment, including the § 924(c) count.
Id. at ¶ 11. Defendant entered the guilty plea
in this court on September 3, 2008. ECF No. 71.
Pre-Sentence Report (PSR) concluded Defendant was an armed
career criminal and career offender pursuant to U.S.S.G.
§4B1.1(b). ECF No. 83. The PSR found Defendant's
prior convictions for burglary second degree, possession with
intent to distribute (“PWID”) marijuana within
proximity of a school, criminal domestic violence of a high
and aggravated nature (“CDVHAN”) and pointing and
presenting firearms at a person (committed on the same day,
and counted as one predicate conviction) were predicate
convictions for armed career criminal and career offender
purposes. Id. Defendant's guideline range was
calculated to be 262-327 months. Id. at ¶ 109.
There were no objections to the PSR. ECF No. 83-1.
13, 2009, Defendant appeared for sentencing. The court
sentenced Defendant to 262 months' imprisonment and an
eight-year term of supervised release. Defendant filed an
appeal, which was dismissed on the Government's motion
based on the appeal waiver in the plea agreement. ECF No.
116. Defendant filed an initial § 2255 motion on August
24, 2011. ECF No. 133. This court granted the
Government's motion to dismiss on November 15, 2011. ECF
No. 146. The Fourth Circuit granted Defendant permission to
file the instant successive § 2255 motion on June 27,
2016. ECF No. 163.
Johnson and Beckles
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.” 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, 578 U.S., 136
S.Ct. 1257, holding that the newly established right
recognized in Johnson is retroactive to cases on collateral
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, 580 U.S. at, 137 S.Ct. at
890. Therefore, the residual clause in §4B1.2(a)(2) of
the former Sentencing Guidelines is not void for vagueness.
Id. at 892.
ACCA/Career Offender Status
was classified as both an armed career criminal and a career
offender at sentencing. After Johnson, the residual clause
can no longer be used to classify his second degree burglary
conviction as a violent felony, and South Carolina burglary
does not qualify as generic burglary under the enumerated
clause. See Mathis v. United States, 579 U.S.__, 136
S.Ct. 2243 (2016). ...