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High v. United States

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

May 14, 2019

Jerry Lynn High, Movant,
v.
United States of America, Respondent.

          OPINION AND ORDER

          Margaret B. Seymour, Senior United States District Judge.

         Jerry Lynn High (“Movant”) is a former federal inmate currently on supervised release. On July 5, 2016, Movant, proceeding with counsel, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence.[1] ECF No. 76. This matter is before the court on a motion to dismiss filed by Respondent United States of America (the “Government”) on February 22, 2018. ECF No. 82. Movant has filed no response to the Government's motion and memorandum.[2]

         I.FACTUAL AND PROCEDURAL HISTORY

         On March 9, 1989, a federal grand jury returned a two- Count Superseding Indictment charging movant with knowingly and willfully attempting to possess with intent to distribute approximately 20 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 846 (Count 1); and knowingly and willfully possessing with intent to distribute approximately 2 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). ECF No. 1 at 1-2. Movant was found guilty of both Counts and was sentenced to 360 months imprisonment on July 24, 1991, to run concurrently with one another and with an unrelated North Carolina sentence. ECF No. 76 at 1. Movant was further sentenced to a term of supervised release of 10 years. ECF No. 82-1 at 1. Movant's § 2255 motion asserts that, following the United States Supreme Court's decision in Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551 (2015), he should no longer be classified as a career offender, thus bringing his guideline range from 360 months-life to 168-210 months. ECF No. 76 at 2.

         II. DISCUSSION

         Movant seeks a correction of his sentence on the basis that he is no longer a career offender because his prior conviction for assault and battery with intent to kill no longer qualifies under the residual clause of the Armed Career Criminal Act of 1984 (ACCA). In Johnson, the Supreme Court addressed the ACCA, which mandates an enhanced sentence for an offender convicted of being a felon in possession of a firearm if the offender has three or more convictions for a serious drug offense or violent felony. Under the ACCA as codified at 18 U.S.C. § 924(e)(2)(B), the term “violent felony” means:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         In Johnson, the Court determined that the language “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” known as the residual clause, is unconstitutionally vague.[3]

         Movant received an enhanced sentence not under the ACCA, but under the United States Sentencing Guidelines (the “Guidelines”), which define a “crime of violence” as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year that-
(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk ...

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