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United States v. Black

United States District Court, E.D. Virginia, Richmond Division

May 16, 2017

UNITED STATES OF AMERICA
v.
SEAN D. BLACK, Petitioner.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Sean D. Black, a federal inmate proceeding with counsel, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Black asserted that, in light of the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his enhanced sentence under the United States Sentencing Guidelines ("USSG") as a career offender is unconstitutional.[1] "Recently, the Supreme Court concluded that the Guidelines are not subject to a vagueness challenge under the Due Process Clause. . . . Johnson's vagueness holding does not apply to the residual clause in [USSG] § 4B1.2(a) (2) ." United States v. Lee, No. 15-6099, ___F.3d___, 2017 WL 1476145, at *2 (4th Cir. Apr. 25, 2017) (citation omitted). Thus, Black's claim lacks merit. Accordingly, the Government's Motion to Dismiss (ECF No. 95) will be granted. The § 2255 Motion (ECF No. 89) will be denied. The action will be dismissed, and the Court will deny a certificate of appealability.

         Further, Counsel for Black, Paul E. Shelton, has submitted a Motion to Withdraw as Counsel (ECF No. 96) . Mr. Shelton states he *cannot identify any non-frivolous arguments to make on his [client's] behalf with respect to his pending motion to vacate . . . or in response to the government's pending motion to dismiss." (Mot. Withdraw at 1.) Nevertheless, Black "has submitted to counsel a pro se supplemental brief that he has specifically asked to be filed with the Court."[2] (Id.) Accordingly, the Motion to Withdraw (Docket No. 96) is granted.

         The Clerk is directed to send a copy of this Memorandum Opinion to Black and all counsel of record.

         It is so ORDERED.

         ORDER

         In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that:

1. Black's § 2255 Motion (ECF No. 89) is denied;
2. The Government's Motion to Dismiss (ECF No. 95) is granted;
3. Shelton's Motion to Withdraw as Counsel (ECF No. 96) is granted;
4. The action is dismissed; and,
5. A certificate of appealability is denied.

         Black is advised that he may appeal the decision of this Court. Should he wish to do so, a written notice of appeal must be filed with the Clerk of the Court within sixty (60) days of the date of entry hereof. Failure to file a timely notice of appeal may result in the loss of the ability to appeal.

         The Clerk of the Court is directed to send a copy of the Memorandum Opinion and Order to ...


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