United States District Court, D. South Carolina, Charleston Division
OPINION AND ORDER
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.
Harris (“Movant”) is a federal inmate currently
housed at USP Coleman I in Coleman, Florida. On July 21,
2016, Movant, originally proceeding without
counsel, filed a motion under 28 U.S.C. §
2255 to vacate, set aside, or correct a sentence. ECF No.
1721. This matter is before the court on a motion to dismiss
filed by Respondent United States of America (the
“government”) on September 8, 2016. ECF No. 1729.
Movant filed a response to the government's motion on
December 7, 2016. ECF No. 1786.
FACTUAL AND PROCEDURAL HISTORY
November 12, 2014, a federal grand jury returned an
eleven-Count Fourth Superseding Indictment against Movant and
his co-conspirators. The Superseding Indictment charged
Movant with: conspiracy to distribute cocaine and cocaine
base in violation of 21 U.S.C. § 846 (Count 1);
conspiracy to use interstate commerce facilities to commit
murder for hire in violation of 18 U.S.C. §§
1958(a) and (b) (Count 5); use of interstate commerce
facilities in commission of a murder for hire in violation of
18 U.S.C. §§ 1958 and 2 (Count 6); obstruction of
justice (attempted murder of a witness to prevent testimony)
in violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2
(Count 8); obstruction of justice (attempted murder of a
witness in retaliation for providing information to law
enforcement) in violation of 18 U.S.C. §§
1513(a)(1)(B) and 2 (Count 9); conspiracy to possess firearms
in relation to a drug trafficking crime in violation of 18
U.S.C. §§ 924(c)(1)(A)(i) and (O) (Count 10); and
use of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and
2 (Count 11). ECF No. 1247. On March 31, 2015, Movant pleaded
guilty to Counts 8 and 11 pursuant to a plea agreement. ECF
No. 1429. On October 13, 2015, the Honorable Sol Blatt, Jr.
sentenced Movant to a total of 550 months imprisonment, with
5 years of supervised release to follow. ECF No. 1587. Movant
received a sentence enhancement pursuant to §
924(c)(3)(B), which enhances sentences for defendants who
commit violent felonies. Movant did not appeal his sentence
§ 2255 motion asserts: the offense for which Movant was
convicted no longer qualifies as a crime of violence pursuant
to Johnson v. United States, 135 S.Ct. 2551
(2015)(Ground 1); Movant's guilty plea was invalid
(Ground 2); and Movant received ineffective assistance of
counsel (Ground 3). ECF No. 1721 at 4.
Movant's Johnson claim
seeks a correction of his sentence on the basis that he
should not have received a sentence enhancement under
Johnson. In Johnson, the Supreme Court
addressed the Armed Career Criminal Act of 1984 (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”
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
Movant's sentence enhancement did not come from the ACCA
but from § ...