United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert United States Magistrate Judge
before the Court is Movant Allen Baird's pro se
Motion to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody pursuant to 28 U.S.C. § 2255, (ECF
No. 56). This matter is assigned to the Honorable Robert C.
Chambers, United States District Judge, and by Standing Order
has been referred to the undersigned United States Magistrate
Judge for the submission of proposed findings of fact and
recommendations for disposition (“PF&R”)
pursuant to 28 U.S.C. § 636(b)(1)(B). Having thoroughly
considered the record and the arguments of the parties, the
undersigned FINDS that Movant's Motion is without merit;
therefore, the undersigned respectfully RECOMMENDS that his
§ 2255 Motion be DENIED, and this matter be DISMISSED
from the docket of the Court.
Factual and Procedural Background
10, 2006, this Court sentenced Movant following his guilty
plea to one count of aiding and abetting the distribution of
five or more grams of cocaine base, also known as
“crack, ” in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. (ECF Nos. 14, 26, 27, 31,
and 40). Movant was sentenced as a career offender
under the United States Sentencing Guidelines
(“Guidelines”) based on two prior felony drug
convictions. (ECF Nos. 40 at 4 and 47 at 2). During
sentencing, the Court considered whether a departure or
variance from the advisory guideline range was warranted, but
did not find a reason to deviate from the career offender
provisions or apply a sentence outside the guideline range.
(Id. at 10-12 and 3). Movant appealed his sentence
to the United States Court of Appeals for the Fourth Circuit
(“Fourth Circuit”), arguing that the sentence was
plainly unreasonable, because the Court applied the career
offender provisions in his case. (ECF No. 47 at 2). The
Fourth Circuit found no basis for concluding that
Movant's sentence was unreasonable and affirmed the
District Court's judgment. (Id. at 3).
now seeks relief under § 2255 “based on the
Supreme Court's new ruling” in Johnson v.
United States, 135 S.Ct. 2551 (2015). In response, the
United States contends that Johnson is inapplicable
to Movant's case, as the holding applies only to
defendants that received sentence enhancements under the
residual clause of the “violent felony”
definition contained in the Armed Career Criminal Act
(“ACCA”). (ECF No. 62 at 3). Respondent points
out that Movant was not sentenced under the ACCA, and his
career offender status was based on prior controlled
substance offenses, not violent felonies. Therefore,
Respondent maintains that Movant is not entitled to habeas
relief under Johnson. (Id. at 4).
Johnson, supra, the Supreme Court held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act [ACCA] violates the
Constitution's guarantee of due process.”
Johnson, 135 S.Ct. at 2563. Under the ACCA, “a
defendant convicted of being a felon in possession of a
firearm faces more severe punishment if he has three or more
previous convictions for a ‘violent felony.'”
Id. at 2555. The ACCA defines the term
“violent felony, ” in relevant part, as any
felony that “involves conduct that presents a serious
potential risk of physical injury to another.”
Id. (citing 18 U.S.C. § 924(e)(2)(B)). The
Supreme Court held that the foregoing definition of violent
felony, referred to as the ACCA's “residual clause,
” is unconstitutionally vague. Id. at 2556-63.
§ 2255 Motion, Movant asserts that he was sentenced
under the residual clause, which was found to be
“constitutionally invalid in light of Johnson.”
(ECF No. 56 at 3). However, Johnson is inapplicable
to Movant's case, because Movant did not receive a
sentence enhancement under the residual clause of the ACCA.
In fact, Movant was not sentenced under the ACCA at all.
Instead, Movant was sentenced as a career offender under the
Guidelines, and he was designated a career offender based
upon prior felony drug convictions, not upon prior violent
felonies. See Guidelines § 4B1.1 (“either
a crime of violence or a controlled substance offense”
may qualify as a predicate offense under the career-offender
guideline). As the holding in Johnson only concerns
sentence enhancements under the residual clause of the ACCA,
it has no bearing on career offender sentence enhancements
based on prior felony drug convictions. See Gardner v.
United States, 1:16-cv-00138-MR, 2016 WL 4479544, at *2
(W.D. N.C. Aug. 24, 2016) (“Nothing in Johnson
affects the definition of ‘controlled substance
offense' or suggests that this Court's determination
of Petitioner's career-offender status based on his prior
drug convictions was erroneous.”); United States v.
Sadm, No. 5:08-CR-00021-1, 2016 WL 5081663, at *4 (W.D.
Va. Sept. 16, 2016) (“Johnson does not affect
the viability of predicate drug offenses under the ACCA and
is, therefore, inapplicable.”); Miles v. United
States, No. ELH-13-0512, 2016 WL 1321390, at *3 (D. Md.
Apr. 5, 2016).
acknowledges that he was not sentenced under the ACCA, but
argues that the reasoning in Johnson should be
extended to career offenders sentenced under the residual
clause of the Guidelines. Movant emphasizes that the residual
clause in the career offender guidelines is identical to the
unconstitutional clause found in the ACCA. (ECF No. 56 at 3)
(Movant argues, “If it applies to armed career
offenders, it has to apply to career offenders the same
because the language in career offender is identical to the
language in armed career offender.”). However, assuming
arguendo that Movant was sentenced based upon the
residual clause of the career offender guidelines-which as
previously noted, he was not-the Supreme Court recently
rejected a claim that the Guidelines' residual clause
should be found unconstitutionally vague in violation of
defendants' right to due process. Beckles v. United
States, 580 U.S., No. 15-8544 (2017). In
Beckles, the Supreme Court was asked to examine the
constitutionality of the career offender guidelines'
residual clause in light of the Johnson decision
striking down the same clause in the ACCA. The Court
determined that the residual clause in the Guidelines was not
unconstitutionally vague, explaining that “[u]nlike the
ACCA … the advisory Guidelines do not fix the
permissible range of sentences.” Id. slip op.
at 5. Rather, the Guidelines “merely guide the exercise
of a court's discretion in choosing an appropriate
sentence within the statutory range.” Id.
Therefore, the Court found that “the Guidelines are not
subject to a vagueness challenge under the Due Process
clause” and “[t]he residual clause in
§4B1.2(a)(2) therefore is not void for vagueness.”
Id. Thus, given the Beckles decision,
Movant's argument that the holding in Johnson
extends to defendants sentenced as career offenders under the
residual clause of the Guidelines is without merit.
the undersigned FINDS that Movant asserts no potentially
meritorious ground for relief under § 2255. As such, his
Motion should be denied and his case should be dismissed with
Proposal and Recommendations
undersigned respectfully PROPOSES that the presiding district
judge confirm and accept the foregoing findings and
RECOMMENDS that the Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2255, (ECF No. 56), be DENIED, and that this action be
DISMISSED, with prejudice, and removed from
the docket of the Court.
parties are notified that this “Proposed Findings and
Recommendations” is hereby FILED, and a copy will be
submitted to the Honorable Robert C. Chambers, United States
District Judge. Pursuant to the provisions of Title 28,
United States Code, Section 636(b)(1)(B), and Rules 6(d) and
72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen days (filing of objections) and three days (if
received by mail) from the date of filing this
“Proposed Findings and Recommendations” within
which to file with the Clerk of this Court, specific written
objections, identifying the portions of the “Proposed
Findings and Recommendations” to which objection is
made and the basis of such objection. Extension of this time
period may be granted by the presiding District Judge for
good cause shown. Failure to file written objections as set
forth above shall constitute a waiver of de novo
review by the District Court and a waiver of appellate review
by the Circuit Court of Appeals. Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474
U.S. 140 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); ...