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Winbush v. United States

United States District Court, S.D. West Virginia, Charleston

March 31, 2017

UNITED STATES OF AMERICA, Respondent. Criminal No. 2:10-00200


          John T. Copenhaver, Jr., United States District Judge

         Pending is the movant's motion pursuant to 28 U.S.C. § 2255, filed on October 1, 2013, his amendment thereto filed on June 10, 2016, with an accompanying affidavit, and an additional affidavit filed on June 13, 2016.

         This action was previously referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission to the court of his Proposed Findings and Recommendation (“PF&R”) for disposition pursuant to 28 U.S.C. § 636. The PF&R was filed on August 12, 2016.


         On May 24, 2011, the defendant pled guilty to one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), a Class C felony punishable by a term of imprisonment of not more than twenty years. He was sentenced on September 12, 2011, to a 151-month term of imprisonment, to be followed by a three-year term of supervised release. He appealed his conviction and sentence. On June 7, 2012, the appeal of his conviction was affirmed and, by virtue of his plea agreement waiver, the appeal of his sentence was dismissed by the United States Court of Appeals for the Fourth Circuit. The Judgment became final after defendant's petition for certiorari in the United States Supreme Court was denied on October 1, 2012.

         On August 12, 2016, the magistrate judge entered his PF&R addressing the substance of each of movant's grounds for relief. Finding each of those grounds to lack merit, the magistrate judge recommended that the section 2255 motion be denied. On August 25, 2016, movant objected on Apprendi grounds and his continuing claim of ineffective assistance of counsel.

         Movant argues that, inasmuch as he was sentenced as a career offender, his sentence was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The holding in Apprendi provides that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Inasmuch as the defendant's 151-month term of imprisonment did not exceed the 20-year maximum penalty, the defendant's objection based on Apprendi is not meritorious. In addition, movant agreed in his plea agreement to waive his right to challenge his sentence under Section 2255, except as to ineffective assistance of counsel. The magistrate judge aptly found that movant's appellate waiver was knowing and intelligent.

         With respect to the claim of ineffective assistance of counsel, after a thorough analysis of the plea colloquy, the magistrate judge found that movant's allegation that his plea was entered into unknowingly or involuntarily due to counsel's failure to adequately explain his sentencing exposure is without merit. In his objections, movant continues to contend that his counsel was constitutionally deficient and that his guilty plea was illegal because his counsel led him to believe that he would not be charged as a career offender.

         In his PF&R, the magistrate judge concluded that the movant's two prior felony controlled substance convictions were properly considered by the district court for career offender purposes, that is, his 2003 conviction for Trafficking in Crack Cocaine and his 2003 conviction for Illegal Conveyance of Drugs on to the Grounds of a Detention Facility (hereinafter “conveyance conviction”). In his § 2255 petition, the movant challenges the use of his illegal conveyance conviction as a predicate for career offender purposes, arguing quite correctly that it does not qualify as a prior felony controlled substance offense because it is a mere possession offense. USSG § 4B1.2(b) defines the term “controlled substance offense” as follows:

The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

         Inasmuch as the term “controlled substance offense” for career offender purposes does not include a mere possession offense, the court finds that the movant's prior felony controlled substance “conveyance conviction” does not qualify as a prior conviction under the career offender guideline at USSG § 4B1.1. However, for the reasons set forth below, the defendant's prior Ohio conviction for “Robbery without Specification” does qualify as a violent felony and the defendant remains subject to the career offender guideline.

         On October 11, 2016, movant filed his “Motion to leave to File a Second and Successive 28 U.S.C. 2255(H)(2), ” wherein he seeks relief from career offender status based on Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act. Although movant misdirects his Johnson argument to the controlled substance convictions, the court will treat it as relating instead to his Ohio conviction for robbery.


         Pursuant to the court's order of November 4, 2016, the government filed on November 29, 2016, its Response of the United States in Opposition to Movant's Motion to Correct Sentence Under 28 U.S.C. § 2255. Therein it concedes that the movant's prior felony conviction for illegal conveyance of drugs on to the grounds of a detention facility is not a qualifying controlled substance offense for career offender purposes. The government argues that the movant still qualifies as a career offender based on his 2003 conviction for trafficking cocaine and his 1998 conviction for “Robbery Without Specification, ” inasmuch as it qualifies as a crime of violence under USSG § 4B1.2.

         At the time movant committed the offense of which he was convicted in this court (October 6, 2010) and at the time he was sentenced on September 12, 2011, a “crime of violence” was defined at USSG § 4B1.2[1], as follows:

(a) The term “crime of violence” means 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         In 2010 and 2011, the enumerated list of covered offenses at Application Note 1 to USSG § 4B1.2 specifically included ...

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