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United States v. Johnson

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

June 6, 2018

United States of America,
v.
Derrick Johnson, Defendant.

          ORDER

          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 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.[1] 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.[2] 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. 185.

         I. Background

         On 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.

         On 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.

         Defendant 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.

         A 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.

         On May 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.

         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.” 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 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, 580 U.S. at, 137 S.Ct. at 890. Therefore, the residual clause in §4B1.2(a)(2) of the former Sentencing Guidelines[3] is not void for vagueness. Id. at 892.

         III. Discussion

         a. ACCA/Career Offender Status

         Defendant 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). ...


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