United States District Court, D. South Carolina, Charleston Division
OPINION AND ORDER
Margaret B. Seymour, Senior United States District Judge.
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. 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.
AND PROCEDURAL HISTORY
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.
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
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.
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
received an enhanced sentence not under the ACCA, but under
the United States Sentencing Guidelines (the
“Guidelines”), which define a “crime of
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 ...