United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
seeks relief in this court pursuant to 28 U.S.C. § 2255
and Johnson v. United States, 576 U.S. at ___, 135
S.Ct. 2551 (2015), arguing he should be resentenced because
his sentence should not have been enhanced due to prior
convictions. ECF No. 60. The court appointed counsel, who
filed a supplemental motion. ECF No. 73. The Government filed
a motion to dismiss or for summary judgment. ECF No. 78.
Defendant filed a motion for leave to cite supplemental
authority. ECF No. 79. This matter is now ripe for
was indicted on July 17, 2013, for one count of felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g), 924(a)(2), and 924(e). ECF No. 1. The
Government filed an information to establish prior
convictions on September 26, 2013, listing four state court
convictions exposing Defendant to enhanced penalties under
the Armed Career Criminal Act. ECF No. 37. On October 25,
2013, an Information was filed, charging Defendant with
possession of a stolen firearm and ammunition, in violation
of 18 U.S.C. § 922(j) and 924(a)(2). ECF No. 38.
Defendant entered into a written plea agreement to plead
guilty to the Information. ECF No. 41. In the plea agreement,
the parties stipulated and agreed to an upward departure to
the maximum sentence allowable under § 922(j), 120
months. Id. at ¶ 7. Defendant also
waived his right to contest his conviction or sentence in a
direct appeal or in a motion pursuant to § 2255, absent
certain circumstances. Id. at ¶ 9. Defendant
appeared before the court and entered a guilty plea to the
Information on November 7, 2013. ECF No. 43.
Pre-Sentence Report (“PSR”) assessed a base
offense level of 24 for the violation of § 922(j), due
to Defendant's commission of the instant offense
“subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense” under U.S.S.G. § 2K2.1(a)(2).
ECF No. 53 at ¶ 45. The PSR listed two counts of
pointing and presenting a firearm, one count of kidnapping,
and one count of assault and battery 1st degree as crimes of
violence qualifying under this Guideline. Id. at
¶¶ 20, 29, 30, 45. Defendant's total offense
level was determined to be 23, with a criminal history of
III, leading to a guideline range of 57-71 months.
sentencing on February 27, 2014, the court sentenced
Defendant to 120 months imprisonment and a three year term of
supervised release. ECF No. 50. Defendant did not appeal his
conviction or sentence.
Recent Supreme Court Decisions
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 residual clause unconstitutionally vague, the
Court narrowed the predicate offenses that could serve to
enhance a sentence to those in the enumerated or force
clauses. The statute's 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
(2016), which held that the newly established right
recognized in Johnson is retroactive to cases on collateral
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 v. United States, 580 U.S.
___, 137 S.Ct. 886, 890 (2017). Therefore, the former
residual clause in §4B1.2(a)(2) of the sentencing
guidelines is not void for vagueness. Id. at
argues his prior convictions should not have been used to
increase his base offense level pursuant to § 2K2.1 due
to Johnson's invalidation of the residual
clause. ECF No. 60-1 at 5. He contends his
“actual, factual, and legal innocence” allows him
to overcome procedural default. Id. at 9.
Defendant's appointed counsel raises other grounds for
relief: (1) Defendant's trial counsel was ineffective for
failing to preserve the issue of whether his pointing and
presenting convictions were valid ACCA predicate offenses,
and (2) pointing and presenting should not be considered an
ACCA predicate offense. ECF No. 73. He argues because trial
counsel led Defendant to believe he would be subject to
enhanced penalties under the ACCA, Defendant agreed to accept
a 120 month sentence instead of the “guidelines
suggested” sentence of 57 to 71 months. Id. at
3. Finally, he contends United States v. King, 673
F.3d 274 (4th Cir. 2012), holding pointing and presenting of
a firearm to be a crime of violence under the Guidelines'
force clause, was wrongly decided. Id. at 9.
Finally, Defense counsel filed a motion requesting the court
consider United States v. Middleton, 883 F.3d 485
(4th Cir. 2018), which held South Carolina involuntary
manslaughter is not a violent felony under the ACCA because
it can be committed in a non-violent manner. ECF No. 79.
Government argues Defendant's trial counsel was not
ineffective for failing to raise a non-meritorious issue
contrary to case law, as Johnson had not been decided at the
time of Defendant's sentencing, and the allegations of
ineffectiveness are simply attempts to circumvent the plea
agreement's waiver. ECF No. 78-1. Further, the Government
argues, Johnson had no effect on pointing and presenting
convictions counting as predicates under the ACCA, and
Defendant's sentence was negotiated and stipulated
between the parties. Id. The Government also
contends Defendant's § 2255 motion is untimely and
barred by procedural default. Id.