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United States v. Dandridge

United States District Court, W.D. Virginia, Abingdon Division

November 8, 2016

UNITED STATES OF AMERICA
v.
DON ANTONIO DANDRIDGE, Defendants.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones, United States District Judge

         In this proceeding under 28 U.S.C. § 2255, Don Antonio Dandridge seeks resentencing based upon the decision of the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015), which struck down the so-called “residual clause” of the Armed Career Criminal Act as unconstitutionally vague. That decision was made retroactive by the Court in Welch v. United States, 136 S.Ct. 1257 (2016). Houser contends that the determination at his 2010 sentencing that he was a career offender under the U.S. Sentencing Guidelines Manual (“USSG”) violates the holding of Johnson. After careful consideration of his motion, I will deny relief.[1]

         Dandridge was found guilty by a jury on May 19, 2004, to felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 1). On August 10, 2004, the defendant was sentenced to 120 months imprisonment. The sentence was based in part on a finding that Dandridge had two prior crimes of violence under USSG. § 2K2.1(a)(2). Dandridge's sentence was affirmed by the court of appeals on March 8, 2005. His § 2255 motion was filed by counsel on June 24, 2016.

         The career offender provision of the Sentencing Guidelines provides a special - and sometimes higher - offense level for defendants who have been convicted of a crime of violence or a controlled substance offense and who have had at least two prior felony convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1(a). Section 2K2.1(a)(2) incorporates the career offender definition of a “crime of violence.” At the time Dandridge was sentenced, “crime of violence” was defined by the Sentencing Guidelines as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that
(1) has as 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, involving use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

USSG § 4B1.2(a) (Nov. 1, 2003) (emphasis added). The italicized portion mirrors the language in the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), found to be unconstitutionally vague in Johnson.[2]

         Dandridge contends that he was found to have two qualifying convictions for a “crime of violence” for robbery under the residual clause of § 4B1.2. He alleges that had he not been scored as a career offender, his offense level, and thus the guideline range of imprisonment, would have been lower. Accordingly, in light of Johnson, Dandridge contends that his sentence ought to be vacated.

         The government, while asking the court to reserve decision on the validity of the career offender residual clause until Beckles has been decided, reserves all of its defenses, including “timeliness, procedural default, and waiver.” (Joint Ominbus Mot. to Hold in Abeyance Petitions Filed Under 28 U.S.C. § 2255 Challenging Sentencing Guideline Determinations in Light of Johnson v. United States, 135 S.Ct. 2551 (2015), at 3, ECF No. 120.)

         While there are differing opinions on this issue, [3] I find that Johnson is not controlling. I hold that the Guidelines, “whether advisory or mandatory, cannot be unconstitutionally vague because they do not establish the illegality of any conduct and are designed to limit and assist the sentencing judge's discretion.” In re Anderson, 829 F.3d 1290, 1292 (11th Cir. 2016). Moreover, I find that the Supreme Court's retroactivity ruling in Welsh applied only to the holding of Johnson, and not to the issue raised in this case. Accordingly, I conclude that Dandridge's sentence is not subject to collateral attack.

         Moreover, Dandridge's motion is barred by the statute of limitations, as contended by the government. Section 2255 provides that a one-year limitation period is triggered ...


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