United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on remand from the Fourth Circuit,
which vacated the Order dismissing Defendant's motion
pursuant to 28 U.S.C. § 2255 after panel rehearing.
See United States v. Twitty, No. 15-7744 (4th Cir.
May 7, 2018). Defendant originally filed his pro se
motion based on the recent Supreme Court decision in
Johnson v. United States, 576 U.S. ___, 135 S.Ct.
2551 (2015), arguing Johnson should apply to his
sentence as a career offender, imposed under the mandatory
Sentencing Guidelines. ECF No. 90. The Government filed a
motion to dismiss and a response in opposition. ECF Nos. 94,
95. Pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the court advised Defendant of the dismissal
procedure and the consequences if he failed to respond.
Defendant filed a reply. ECF No. 99. The court then granted
the Government's motion to dismiss, finding
Defendant's career offender status had no effect on his
sentence because he was sentenced to the statutory maximum.
ECF No. 100 at 4. Absent the statutory maximum, his guideline
range based on the applicable offense level, with offense
specific enhancements, and criminal history would have been
far higher. Id.
appealed, and the Fourth Circuit issued a certificate of
appealability. United States v. Twitty, No. 15-7744,
at ECF No. 7. After briefing, the court placed the case in
abeyance pending a decision in Beckles v. United
States, 580 U.S. ___, 137 S.Ct. 886 (2017). On March 31,
2017, the Fourth Circuit entered an Order affirming as
Defendant's claim was “barred by
Beckles.” No. 15-7744, at ECF No. 15.
Defendant filed a motion for rehearing or rehearing en
banc, and the case was again placed in abeyance,
awaiting the Fourth Circuit's decision in United
States v. Brown, No. 16-7056, a pending case regarding a
career offender sentenced under the mandatory guideline
scheme. No. 15-7744, ECF Nos. 17, 21. On May 7, 2018, after
Brown was decided, the Fourth Circuit entered an
opinion granting Defendant's motion for rehearing and
vacating and remanding this court's dismissal of
Defendant's § 2255 motion. United States v.
Twitty, 721 Fed.Appx. 300 (4th Cir. May 7, 2018). The
Fourth Circuit reasoned this court “did not consider
the impact of the fact that Twitty's drug amount and
firearm enhancements were applied pursuant to the mandatory
Guidelines procedures” and remanded for such
consideration. Id. at 301.
August 18, 1998, a federal grand jury indicted Defendant on
two counts of possession with intent to distribute and
distribution of narcotics. ECF No. 1. On October 7, 1998, the
Government filed an Information pursuant to 21 U.S.C. §
851, notifying Defendant that he was exposed to enhanced
penalties based upon a prior felony drug conviction. ECF No.
14. Defendant entered into a plea agreement with the
Government in which he agreed to plead guilty to Count 2, and
the Government agreed to move to dismiss Count 1 and to
withdraw the Information. ECF No. 15.
later moved to withdraw his guilty plea, as he objected to
the quantity of cocaine base - more than 1.5 kilograms - for
which the Presentence Investigation Report (PSR) held him
responsible, even though he had previously admitted to
selling two or three kilograms of crack and about 26
kilograms of cocaine. ECF No. 21. At sentencing, the
court denied Defendant's motion and
overruled his objections to the PSR. Defendant's
guideline range, based upon the amount of drugs involved in
the offense and Defendant's criminal history, was 360
months to life imprisonment. The court sentenced Defendant to
500 months' imprisonment, and Defendant appealed. ECF No.
appeal, Defendant argued that the threshold drug amounts set
forth in 21 U.S.C. § 841(b) are elements of the offense
that must be alleged in the indictment and proved beyond a
reasonable doubt or admitted by Defendant. The Fourth Circuit
affirmed Defendant's conviction and sentence (ECF No.
41); Defendant thereafter filed a petition for a writ of
certiorari. The Supreme Court granted
certiorari and remanded Defendant's case for
reconsideration in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). ECF No. 43. On remand,
the Fourth Circuit concluded Defendant's sentence
“violate[d] Apprendi because the indictment
charged an unspecified quantity of drugs and, under 21 U.S.C.
§ 841(b)(1)(C), [Defendant] was subject to a maximum
sentence of twenty years.” United States v.
Twitty, 74 Fed.Appx. 288 (4th Cir. 2003). On remand, the
court sentenced Defendant to 240 months' imprisonment.
ECF No. 48. Defendant again appealed his sentence. ECF No.
appeal, Defendant's counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967),
questioning whether the court erred in refusing to consider
Defendant's objections from his first sentencing, even
though they were not raised in the first appeal. United
States v. Twitty, 172 Fed.Appx. 480 (4th Cir. 2006).
Noting the mandate rule that issues decided by the district
court but forgone on appeal generally cannot be reopened, the
Fourth Circuit found that the court was correct in strictly
limiting its decision on remand to resentencing on the
Apprendi issue. Id. at 482.
Defendant's appeal was pending, the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005),
holding the mandatory sentencing guidelines violated the
Sixth Amendment. Defendant and the Government filed
supplemental appellate briefs addressing the application of
the Booker holding to Defendant's case. Finding
that the court did not err in imposing sentence, the Fourth
Circuit affirmed Defendant's sentence. 172 Fed.Appx. at
thereafter filed a motion pursuant to 28 U.S.C. §2255.
ECF No. 60. He asked the court to hold the motion in abeyance
pending his challenge to a prior drug distribution conviction
used to enhance his sentence. The court denied
Defendant's motion to hold the case in abeyance, noting
that if he was successful in attacking his prior state
conviction, Defendant could apply to reopen his sentence. ECF
No. 63. The court held that since Defendant alleged no other
grounds for relief, the motion for relief under § 2255
would be dismissed, but that any
‘”properly-filed, timely motion which includes
any other grounds for relief which Defendant might have shall
not, for purposes of § 2244, be considered a second or
successive petition by this court.” Id.
1, 2015, Defendant filed the instant motion for relief under
28 U.S.C. § 2255. ECF No. 90. Defendant's motion was
received by the court on July 16, 2015.
Impact of Recent Supreme Court Decisions On June 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