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Kenerson v. United States

United States District Court, N.D. West Virginia

May 23, 2018

STEVEN KENERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 18] AND GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         Pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), the petitioner, Steven Kenerson (“Kenerson”), has filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion”) (Dkt. No. 1). For the reasons that follow, the Court GRANTS in part and DENIES in part his Motion.

         I. SENTENCING LANDSCAPE AT THE TIME OF PETITIONER'S CONVICTION AND SENTENCING

         In 2005, after Kenerson pleaded guilty to possessing cocaine base with intent to distribute, being a felon in possession of a firearm, and assaulting a witness with intent to intimidate, he received a concurrent sentence of 262 months of incarceration (Crim. No. 1:05cr28, Dkt. No. 31). When Kenerson was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), the Armed Career Criminal Act (“ACCA”) imposed an enhanced sentence of 15 years to life imprisonment if a defendant had three previous convictions for a “violent felony” or “serious drug offense.” Serious drug offenses included those under the Controlled Substances Act for which the maximum term of imprisonment was 10 years or more. 18 U.S.C. § 924(e)(2)(A). Violent felonies included those punishable by more than one year in prison that:

(i) ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) [were] burglary, arson, or extortion, involve[d] use of explosives, or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). The closing phrase of subsection (ii) is known as the ACCA “residual clause.”

         The 2004 Manual of the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) relevant to Kenerson's case implemented the ACCA by classifying as an “armed career criminal” any defendant subject to an enhanced penalty under § 924(e). U.S.S.G. § 4B1.4(a). Relevant to Kenerson, an armed career criminal possessing a firearm in connection with a controlled substance offense was subject to a base offense level 34 unless the applicable offense level under the career offender guideline was greater. U.S.S.G. § 4B1.4(b). The sentencing guidelines classified a defendant as a “career offender” if (1) he was at least eighteen years of age when he committed the offense of conviction, (2) the offense of conviction was a felony crime of violence or controlled substance offense, and (3) the defendant had at least two prior felony convictions for a crime of violence or controlled substance offense. Id. § 4B1.1(a).

         The guideline definitions of “crime of violence” and “controlled substance offense” were similar to the definitions of “violent felony” and “serious drug offense” under the ACCA. A “controlled substance offense” included offenses “punishable by imprisonment for a term exceeding one year, that prohibit[] the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). A “crime of violence” included offenses, punishable by more than one year in prison, that:

(1) ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) [was] burglary of a dwelling, arson, or extortion, involve[d] use of explosives, or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). The career offender definition of a “crime of violence” thus included the same “residual clause” found in the ACCA definition of a “violent felony.”

         Other than in circumstances not relevant to this case, the base offense level under the career offender guideline depended on the maximum term of imprisonment authorized for the offense of conviction that was a “crime of violence” or “controlled substance offense.” U.S.S.G. § 4B1.1(b), Application Note 2. For instance, if the statutory maximum was life imprisonment, the base offense level was 37, but if the statutory maximum was between 25 years and life, the base offense level was 34. U.S.S.G. § 4B1.1(b)(A), (B).

         This sentencing landscape changed dramatically in 2015 when the Supreme Court struck down the residual clause in the ACCA in Johnson v. United States, 135 S.Ct. 2551 (2015). There the Court considered a vagueness challenge to the residual clause in the ACCA definition of a violent felony. Reasoning that the clause involved too much uncertainty about “how to estimate the risk posed by a crime, ” and how much risk sufficed to qualify a felony as violent, the Supreme Court declared the clause unconstitutionally vague. Id. at 2557-59. Thereafter, in Welch v. United States, the Court held that its decision in Johnson applied retroactively to cases on collateral review, thereby entitling petitioners to challenge, under 28 U.S.C. § 2255, sentences enhanced under the ACCA residual clause. 136 S.Ct. 1257, 1261 (2016). In Beckles v. United States, however, the Court held that the same language in the residual clause of U.S.S.G. § 4B1.2(a)(2) was not void for vagueness because “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause.” 137 S.Ct. 886, 890 (2017).

         II. BACKGROUND

         A. Kenerson's Conviction and Sentence

         On July 8, 2004, the grand jury returned a three-count indictment, charging Kenerson with the following crimes:

• Count One: Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a)(1);
• Count Two: Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 21 U.S.C. § 924(c)(1)(A)(i); and
• Count Three: Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).

(Crim. No. 1:04cr52, Dkt. No. 1). Before those charges were adjudicated, on March 3, 2005, the grand jury returned an additional indictment charging him with one count of assaulting a witness with the intent to intimidate, in violation of 18 ...


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