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Ross v. United States

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

May 14, 2019

Marcus Quincy Ross, Movant,
v.
United States of America, Respondent.

          OPINION AND ORDER

          MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE

         Marcus Quincy Ross (“Movant”) is a federal inmate currently housed at USP Coleman I in Coleman, Florida. On June 24, 2016, Movant, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence. ECF No. 96. This matter is before the court on a motion to dismiss filed by Respondent United States of America (the “government”) on February 27, 2018. ECF No. 109. Movant has filed no response to the Government's motion.

         I. FACTUAL AND PROCEDURAL HISTORY

         On December 17, 2002, a federal grand jury returned a thirty-four Count Superseding Indictment charging Movant with Armed Bank Robbery in violation of 18 U.S.C. § § 2113(a), 2113(d), and 2 (Counts 1, 3, and 5), Possession of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924 (c)(1)(A)(Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34), and Interference with Interstate Commerce by Threats or Violence in violation of 18 U.S.C. § 1951(Counts 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33). ECF No. 9. Movant pleaded guilty to Counts 1, 2, 3, 5, 6, 7, 17, 31, and 33 on April 3, 2003, pursuant to a straight-up plea. ECF No. 41. On August 6, 2003, Movant was sentenced by this court to a total of 608 months imprisonment. ECF No. 51. Judgment was entered on September 10, 2003. ECF No. 53. Movant filed a Notice of Appeal on September 29, 2003. ECF No.54. The Court of Appeals for the Fourth Circuit issued an opinion affirming this court's sentencing decision on September 2, 2004. ECF No. 65.

         Movant's § 2255 motion asserts the following ground for relief: “predicate offense used to career movant no longer applicable under 4B1.1 [of the United States Sentencing Guidelines].” ECF No. 96 at 4. This matter was stayed pending the United States Supreme Court's decision in the case of Beckles v. United States, 137 S.Ct. 886 (2017). ECF No. 101. Following the decision in Beckles, the court lifted its stay on January 29, 2018. ECF No. 107.

         II. DISCUSSION

         Movant seeks a correction of his sentence on the basis that he is no longer a career offender because his prior convictions for failure to stop for a blue light and strong armed robbery do not qualify under the residual clause of the Armed Career Criminal Act of 1984 (ACCA). ECF No. 96 at 4. In Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015), the Supreme Court addressed 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.[1]

         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 ...

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