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Solomon v. United States

United States District Court, S.D. West Virginia, Huntington Division

February 16, 2018

RAFAEL CEE-ERWIN SOLOMON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Movant's “Emergency Motion to Correct Sentence Under 28 U.S.C. § 2255” (Document No. 236), filed on June 24, 2016. By Standing Order, this matter was referred to the undersigned for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 237.)

         FACTUAL AND PROCEDURAL BACKGROUND

         A Criminal Action No. 3:11-00203:

         On August 8, 2012, Movant pled guilty to one count of Conspiracy to Distribute 28 Grams or More of Cocaine Base and Quantities of Cocaine and Oxycodone in violation of 21 U.S.C. § 846 (Count One of Superseding Indictment). (Criminal Action No. 3:11-00203, Document Nos. 129, 130, 132, and 133.) A Presentence Investigation Report was prepared. (Id., Document No. 153.) The District Court determined that Movant had an Base Offense Level of 28, and a Total Offense Level of 31, the Court having applied the following: A two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) because Movant possessed a firearm; an enhancement to an adjusted offense level of 34 pursuant to U.S.S.G. § 4B1.1 because Movant met the criteria for career offender status; and a three-level reduction pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. (Id., pp. 9 - 10.) The District Court sentenced Movant on December 10, 2012, to serve a total term of 135 months of incarceration to be followed by a five-year term of supervised release.[1] (Id., Document Nos. 151 and 155.) The District Court further imposed a $100 special assessment. (Id.)

         On December 17, 2012, Movant filed a Notice of Appeal. (Id., Document No. 157.) The United States filed a Motion to Dismiss arguing that Movant's appeal was barred by the waiver of the right to appeal included in Movant's Plea Agreement. (Id., Document No. 177.) By Order entered on June 17, 2013, the Fourth Circuit granted the United States' Motion to Dismiss finding that Movant “knowingly and voluntarily waived his right to appeal and that the issues he seeks to raise on appeal fall squarely within the compass of his waiver of appellate rights.” (Id., Document Nos. 177 and 178.)

         B. Section 3582 Motion:

         On February 12, 2014, Movant, acting pro se, filed a Motion for Reduction of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2) arguing that he was entitled to a sentence reduction based upon the reduction in Sentencing Guidelines. (Id., Document No. 214.) By Order filed on November 25, 2015, the District Court denied Movant's Section 3582(c)(2) Motion. (Id., Document No. 219.) On December 10, 2015, Movant filed his letter-form Motion for Reconsideration. (Id., Document No. 220.) By Order filed on December 14, 2015, the District Court denied Movant's Motion for Reconsideration. (Id., Document No. 222.) On December 22, 2015, Movant filed his Notice of Appeal. (Id., Document No. 223.) On April 1, 2016, the Fourth Circuit Court of Appeals affirmed the judgment of the District Court. (Id., Document Nos. 229 and 230.)

         C. Section 2255 Motion:

         On June 24, 2016, Movant, by court-appointed counsel, Federal Public Defender Christian M. Capece and Research and Writing Specialist Jonathan D. Byrne, filed his “Emergency Motion to Correct Sentence Under 28 U.S.C. § 2255.” (Civil Action No. 3:16-5735, Document No. 236.) In support of his Motion, Movant alleges that he is entitled to relief based upon the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (Id.) Movant argues that he is entitled to relief under “Section 2255(f)(3) because he filed [his Motion] within one year of the Supreme Court's decision in Johnson - a ruling which established a ‘newly recognized' right that is ‘retroactively applicable to cases on collateral review.'” (Id.) Movant contends that in light of Johnson, he “is no longer a career offender because his prior convictions no longer qualify as a career offender ‘crime of violence.'” (Id.) Additionally, counsel states that they were unable to fully brief the issues presented in the Section 2255 Motion due to time constraints and “counsel will ask for leave to supplement this petition at a later time.” (Id., p. 3.)

         By Order entered on June 30, 2016, the undersigned directed Movant to file any supplemental brief in support of his Section 2255 Motion by August 1, 2016, and directed the United States to file its Answer by September 12, 2016. (Id., Document No. 238.) On August 1, 2016, Movant, by counsel, filed his “Supplement to Defendant's Emergency Motion to Vacate & Correct Sentence Under 28 U.S.C. § 2255.” (Id., Document No. 249.) Movant argues that under Johnson, Movant “is no longer a career offender because his prior convictions for arson of personal property, felonious assault, and felony assault, resisting, or obstructing a law enforcement officer (all in Michigan) no longer qualify as crimes of violence under any portion of the career offender definition.” (Id.) In support, Movant explains that in Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act [“ACCA”] was unconstitutionally vague. (Id.) Movant, therefore, argues that “[i]t follows that the identical residual clause in the career offender provision, U.S.S.G. § 4B1.2(a)(2), is also void for vagueness.” (Id.) Movant argues that he is entitled to relief under “Section 2255(h)(2) because Johnson establishes a ‘new rule of constitutional law' that has been ‘made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” (Id.) Thus, Movant concludes that his prior convictions do not trigger the application of the Section 4B1.1 career offender enhancement. (Id.) Movant argues that his prior convictions do not qualify as crimes of violence under the enumerated offenses or the force clause of the career offender provision. (Id.) Movant, therefore, argues that “in light of Johnson, [he] no longer qualifies as a career offender, and his current sentence violates due process of law in violation of 28 U.S.C. § 2255(a).” (Id.)

         On August 4, 2016, the United States filed its Response to Movant's Section 2255 Motion. (Id., Document No. 252.) First, the United States argues that “[e]ven if the Supreme Court were to decide in the Beckles case that Johnson retroactively applies to the residual clause of the career offender guideline, that ruling would have no application on Defendant's case.” (Id., p. 5.) The United States contends that the District Court “specifically held Defendant's previous convictions did not, in its opinion, qualify as predicate convictions for the application of the career offender guideline provision.” (Id., pp. 5 - 6.) The United States notes that the District Court sentenced Movant “squarely within the guideline range based on his drug weight and actual criminal history, without regard to his career offender status.” (Id., p. 6.) Second, the United States asserts that even assuming Johnson applies retroactively to the Guidelines, Movant “knowingly and voluntarily waived his right to challenge his guilty plea and conviction, and sentence imposed for the conviction, in any collateral attack.” (Id., pp. 6 - 8.)

         Movant, by counsel, filed his Reply on September 26, 2016. (Id., Document No. 255.) First, Movant argues that regardless of the sentence ultimately imposed, Movant was classified as a career offender at sentencing. (Id., pp. 3 - 4.) Second, Movant contends that he is entitled to relief under Section 2255 because his sentence was imposed in violation of the Constitution. (Id., pp. 4 - 6, 9 - 10.) Third, Movant notes that this Court concluded Movant was sentenced as a career offender when denying his request for a reduced sentence pursuant to Section 3582(c)(2). (Id., pp. 6 - 7.) Movant argues that had he not been classified as a career offender, he would have been eligible for a reduced sentence pursuant to ...


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