United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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. "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.
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." (Id.) Accordingly, the Motion to
Withdraw (Docket No. 96) is granted.
Clerk is directed to send a copy of this Memorandum Opinion
to Black and all counsel of record.
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
3. Shelton's Motion to Withdraw as Counsel (ECF No. 96)
4. The action is dismissed; and,
5. A certificate of appealability is denied.
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.
Clerk of the Court is directed to send a copy of the
Memorandum Opinion and Order to ...