United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's Motion to
Reduce Sentence, filed in this court pursuant to 28 U.S.C.
§ 2255. ECF No. 323. The Government filed a motion to
dismiss or for summary judgment and memorandum in support.
ECF No. 237. Defendant filed a reply. ECF No. 238. For the
reasons below, the Government's motion is granted and
Defendant's Motion pursuant to § 2255 is
dismissed with prejudice.
January 12, 2011, Defendant was charged in a second
superseding incitement with one count of possession with
intent to distribute and distribution of a mixture containing
a detectable amount of cocaine (Count 1); one count of
possession of a firearm by a convicted felon (Count 2); one
count of possession of a firearm during a drug trafficking
crime (Count 3); and failure to appear (Count 4). ECF No.
jury trial, Defendant was convicted on Counts 1, 2, and 4,
but acquitted on Count 3. ECF No. 145. Defendant was
sentenced on May 18, 2011, and Judgment entered on May 19,
2011, sentencing Defendant to a total term of 151 months in
prison, consisting of 121 months as to Count 1, 120 months as
to Count 2 (concurrent with Count 1), and 30 months
consecutive as to Count 4, followed by eight years of
supervised release. ECF No. 171.
sentencing, the court overruled Defendant's objection to
the increase in his offense level for possession of a firearm
as noted in paragraphs 75 and 81 of the PreSentence Report
(“PSR”). ECF No. 186 at 7-9. The court found the
firearm enhancement was appropriate, because the firearm was
found in a safe Defendant admitted belonged to him and it was
“clearly improbable that the weapon was not connected
with the offense” since the safe contained lidocaine
and there was cocaine on top of the safe. Id. at
26, 2011, Defendant filed a Notice of Appeal to the Fourth
Circuit. ECF No. 175. In an Anders brief, defense
counsel raised the increase in Defendant's offense level
for possession of a firearm in connection with the crime.
United States v. Browder, No. 11-4577, ECF No. 24 at
48-49. The Fourth Circuit affirmed the conviction and
sentence, finding “no error warranting
resentencing.” No. 11-4577, ECF No. 36 at 5-6. An
Amended Judgment was entered May 1, 2014, reducing
Defendant's sentence, on the Government's Rule 35(b)
motion, to 139 months. ECF No. 211.
filed the instant motion pursuant to § 2255 on March 22,
2018. ECF No. 230.
argues his sentence should be reduced based on the reasoning
of Nelson v. Colorado, 581 U.S. __, 137 S.Ct. 1249
(2017), which held a Colorado statute unconstitutional
because it required a defendant, whose conviction was
overturned on appeal, to prove her innocence via collateral
review before the costs, fees, and restitution paid during
her criminal case would be returned. ECF Nos. 230, 238.
Defendant contends this is similar to his case because he
should not be penalized for conduct for which he was found
not guilty, yet his sentencing guideline calculation was
enhanced two points for possession of a firearm during the
acts giving rise to Count 1 even though he was acquitted of
Count 3, possession of a firearm during a drug trafficking
crime. ECF No. 237-1. Based on Nelson, he argues
“an acquittal or reversal on an appeal restores
Defendant's presumption of innocence and to penalize him
for conduct for which he is presumed innocent would be a
violation of his due process rights under the
Constitution.” ECF No. 238.
response, the Government argues the motion is really one for
a sentence reduction under 18 U.S.C. § 3582, and
Defendant has previously filed such a motion that was denied.
ECF No. 237-1. The Government also argues the sentencing
court did not err in considering criminal conduct of which
Defendant was acquitted as “relevant conduct” for
guideline purposes. Id. at 6. It notes the Supreme
Court's holding in United States v. Watts, 519
U.S. 148 (1997) is directly on point and forecloses
Defendant's argument. Id. In his reply,
Defendant argues Watts was implicitly overruled by
the reasoning in Nelson. ECF No. 238.
court finds Watts controlling and not overruled by
Nelson. In Watts, the Supreme Court held a
“jury's verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the
acquitted charge, so long as that conduct has been proved by
preponderance of the evidence.” 519 U.S. at 157. That
is exactly what has happened in this case. Defendant was
acquitted on Count 3, but the conduct underlying the charge -
the possession of the firearm - was used to increase the
offense level on Count 1 by two points pursuant to U.S.S.G.
§ 2D1.1(b)(1) and on Count 2 by four points under §
2K2.1(b)(6). Id. (“[T]he jury acquitted the
defendant of using or carrying a firearm during or in
relation to the drug offense. That verdict does not preclude
a finding by a preponderance of the evidence that the
defendant did, in fact, use or carry such a weapon, much less
that he simply possessed the weapon in connection
with a drug offense.”). Further, there is no explicit
or implied overruling of Watts in Nelson,
as Nelson considered a completely different factual
situation regarding sums paid due to convictions later
reasons set forth above, the Government's motion to
dismiss is granted, and Defendant's § 2255 ...