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United States v. Twitty

United States District Court, D. South Carolina, Rock Hill Division

July 19, 2018

United States of America,
v.
Steven Lavour Twitty, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         Defendant 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.

         I. Background

         On 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.

         Defendant 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[1] 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. 32.

         On 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. 51.

         On 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.

         While 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 483-84.

         Defendant 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.

         On July 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[2].

         II. 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.

         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[3]is not void for vagueness. Id. at 892.

         III. ...


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