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Rogers v. United States

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

March 6, 2019

Ernest Lee Rogers, Jr., Movant,
v.
United States of America, Respondent.

          OPINION AND ORDER

          Margaret B. Seymour Senior United States District Judge

         Movant Ernest Lee Rogers, Jr. is an inmate in custody of the Bureau of Prisons. He seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

         I. BACKGROUND

         On March 27, 2002, a federal grand jury returned a three-count indictment, charging Movant with carjacking, in violation of 18 U.S.C. §§ 2, 2119 (Count 1); use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii) (Count 2); and conspiracy to use a firearm during a crime of violence, in violation of 18 U.S.C. § 924(o) (Count 3). On September 25, 2002, a jury convicted Movant of all three counts. ECF No. 59.

         A presentence investigation report (PSR) was prepared by the United States Probation Office (USPO). The PSR noted that, among other offenses, Movant has state court convictions for strong armed robbery and burglary. Movant's criminal history score was eighteen, to which two points were added because Movant committed the underlying federal offenses less than two years following his release from custody of the South Carolina Department of Corrections for a sentence imposed for possession of a stolen vehicle. A criminal history score of twenty results in a criminal history category of VI; and, Movant's criminal history category was deemed to be VI because he has two prior felony convictions involving a crime of violence. See U.S.S.G. § 4B1.1.

         The PSR advised that when one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts, the two counts shall be grouped together into a single group. See U.S.S.G. § 3D1.2(c). The PSR explained that because conspiring to brandish a firearm during a crime of violence is a specific offense characteristic of the carjacking, the two counts would be grouped together. Under U.S.S.G. § 3D1.3(a), in the case of counts grouped together pursuant to U.S.S.G. § 3D1.2(a)-(c), the offense level applicable to a group is the offense level used for the most serious of the counts comprising the group, determined in accordance with Chapter 2 and Parts A, B, and C of Chapter 3.

         Under the statutory provisions, the maximum term of imprisonment for Count One is fifteen years. 18 U.S.C. § 2119. The maximum term of imprisonment for Count Two is seven years, to run consecutively to any other sentence imposed. 18 U.S.C. § 924(c)(1). The maximum term of imprisonment for Count Three is twenty years. 18 U.S.C. § 924(o). Application of the career offender enhancement under the Sentencing Guidelines caused Movant's base offense level to increase from 23 to 29, and, with a criminal history category of VI, Movant's guidelines range for imprisonment was 151 to 188 months. The PSR advised that with respect to Count Two, the Sentencing Guidelines defer to the statutory requirement, which is a seven-year consecutive sentence.

         On November 25, 2002, the court sentenced Movant to incarceration for a period of 272 months, which consisted of 188 months as to Count One and Three, to be served concurrently, and seven years as to Count Two, to run consecutive to the terms imposed in Counts One and Three. The court also sentenced Movant to five years' supervised release. The court entered judgment on November 26, 2002, ECF No. 66, and the Court of Appeals for the Fourth Circuit affirmed. United States v. Rogers, 67 Fed.Appx. 830 (4th Cir. 2003). Movant subsequently initiated 28 U.S.C. § 2255 proceedings and filed motions to dismiss the indictment, to inspect the list of grand juror names and to dismiss for selective prosecution or, in the alternative, convene a federal grand jury and disclose grand jury transcripts, which the court denied. Movant appealed the decision, and the Fourth Circuit dismissed the appeal. United States v. Rogers, 441 Fed.Appx. 153 (4th Cir. 2011).

         Upon authorization by the Fourth Circuit, ECF No. 125, Movant filed a successive § 2255 motion on June 27, 2016. ECF No. 126. In the motion, Movant seeks the benefit of Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague.[1] He argues that Johnson applies with equal force to the United States Sentencing Guidelines under which he was sentenced, and that neither of his prior convictions for robbery or burglary qualify as a predicate offense under the “residual clause” of U.S.S.G. § 4B1.2(a)(2).

         On July 8, 2016, the Government filed a motion to stay the matter pending a ruling in Beckles v. United States, 580 U.S. ----, 137 S.Ct. 886, 890 (2017). ECF No. 128. The court granted the motion and stayed briefing on the § 2255 motion. ECF No. 129. On May 15, 2017, Movant filed a supplemental motion to vacate or correct pursuant to 28 U.S.C. § 2255. ECF No. 131. The Supreme Court issued a decision in Beckles on March 6, 2017; however, on August 16, 2017, the court issued an order advising the parties that it would maintain the stay pending a decision by the Fourth Circuit in United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017). ECF No. 132. The Fourth Circuit issued a decision in Brown on August 21, 2017, and this court lifted the stay on January 29, 2018. ECF No. 133. On February 28, 2018, the Government filed a combined response to the § 2255 motion and a motion for summary judgment and memorandum in support thereof. ECF Nos. 135, 136. On March 8, 2018, Movant filed an unopposed motion asking the court to stay the matter pending the filing and resolution of a petition for writ of certiorari in Brown.[2] ECF No. 137. On October 15, 2018, the Supreme Court denied the petition for writ of certiorari. Brown v. United States, --- S.Ct. ----, 2018 WL 2877128 (Oct. 15, 2018). The court thereafter denied Movant's motion to stay, and ordered him to submit additional information, if he chose, within ten days. ECF No. 139. For the reasons discussed below, the motion for summary judgment is granted and the § 2255 motion is denied.

         II. DISCUSSION

         A. Legal Standard

         A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that his sentence was imposed in violation of the Constitution or laws of the United States; or that the court was without jurisdiction to impose such sentence; or that the sentence was in excess of the maximum authorized by law; or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If this showing is made, the court must “vacate and set the judgment aside” and “discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate.” Id. at § 2255(b). If, on the other hand, “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, ” the court may summarily deny the petition without holding a hearing. 28 U.S.C. § 2255(b) (providing that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief); see Rule 4(b), Rules Governing Section 2255 Proceedings. Generally, when a movant attacks his sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994).

         A movant must file a § 2255 motion one year from the latest of: 1) the date on which a judgment of conviction becomes final; 2) the date on which an impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the defendant was prevented from making a motion by such governmental action; 3) the date on which a right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...


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