United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, and
Christine Madeleine Lee, Assistant Federal Public Defender
for Appellate Litigation, Roanoke, Virginia, for Defendant.
P. Jones United States District Judge
Leonard Andre Hudson has filed a Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C.A. § 2255. The
United States moves to dismiss the § 2255 motion and
Hudson, by counsel, has responded, making the matter ripe for
disposition. After review of the record, I will grant the
Motion to Dismiss.
December 4, 2006, Hudson was stopped for speeding. During the
stop, Hudson gave a false name to the police officer. After
placing Hudson under arrest, officers conducted a search of
the vehicle he was driving and found illegal drugs and a
pistol with an altered serial number. Based upon this
evidence, a grand jury of this court returned a four-count
Superseding Indictment. Hudson moved unsuccessfully on Fourth
Amendment grounds to suppress evidence seized after the
traffic stop. United States v. Hudson, 497 F.Supp.2d
771 (W.D. Va. 2007).
proceeded to trial, and on October 30, 2007, a jury found him
guilty of possession with intent to distribute oxycodone, a
controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) (Count One); transporting in
interstate commerce a firearm with an altered serial number,
in violation of 18 U.S.C. §§ 922(k) and
924(a)(1)(B) (Count Two); possessing a firearm after having
been convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (Count Three); and making a
false statement regarding a matter within the jurisdiction of
the federal government, in violation of 18 U.S.C.A.
§§ 1001(a)(1) and (2) (Count Four). I granted
Hudson's Motion for Judgment of Acquittal as to Count
Four, finding insufficient proof that his statement, even if
false, was within the jurisdiction of a federal agency. I
denied the motion as to his other convictions. United
States v. Hudson, No. 1:07CR00016, 2008 WL 110449 (W.D.
Va. Jan. 9, 2008), aff'd, 375 F. App'x 353
(4th Cir.) (unpublished), cert. denied, 562 U.S. 937
(2010), reh'g denied, 562 U.S. 1266 (2011). On
March 24, 2008, Hudson was sentenced to a total of 188 months
imprisonment, consisting of 188 months on Counts One and
Three, and 60 months on Count Two, such terms to run
concurrently. J. 2, Mar. 26, 2008, ECF No. 71.
filed a § 2255 motion on February 1, 2012, which was
denied as untimely. United States v. Hudson, No.
1:07CR00016, 2012 WL 6617114 (W.D. Va. Dec. 19, 2012),
appeal dismissed, 522 F. App'x 202 (4th Cir.
2013) (unpublished). He filed a second § 2255 motion on
June 15, 2014, which was denied as successive. Op., July 2,
2014, ECF No. 132.
1, 2015, Hudson filed a third § 2255 motion, this time
based upon the decision of the Supreme Court in Johnson
v. United States, 135 S.Ct. 2551 (2015), which motion
was also dismissed as successive. Op., July 15, 2015, ECF No.
order of September 8, 2015, the Federal Public Defender for
this district was appointed to represent Hudson in connection
with his possible Johnson claim. On June 21, 2016,
the court of appeals granted Hudson leave to file a
successive motion under § 2255, finding that he had made
a prima facie showing that the new rule of constitutional law
announced in Johnson, made retroactive by Welch
v. United States, 136 S.Ct. 1257 (2016), may apply to
his case. Order, No. 15-310 (4th Cir. June 21, 2016), ECF No.
154. That same day, Hudson's pro se § 2255 motion
was filed in this court, raising a Johnson claim. On
June 30, 2016, counsel for Hudson filed an amended §
2255 motion that elaborated on his claim, asserting that
Hudson had been sentenced under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), and that based
upon Johnson, his prior Pennsylvania state
convictions for misdemeanor assault, burglary, and robbery no
longer qualified as violent felonies under the ACCA. While
the United States initially filed a Motion to Dismiss,
contending that that Hudson's predicate offenses (other
than burglary) did qualified as proper predicates under the
enumerated crime clause of the ACCA, it thereafter filed an
amended response, withdrawing its Motion to Dismiss, and
agreeing that Hudson was entitled to relief.
upon the United States' concession, this court granted
Hudson's § 2255 motion and vacated his prior
sentence, subject to resentencing. Order, Jan. 5, 2017, ECF
No. 186. Upon further review of the record, however, the
court determined that Hudson had not been sentenced as an
armed career criminal under the ACCA, but rather as a career
offender under U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1. An order was promptly
entered by the court vacating the prior grant of relief.
Order, Jan. 6, 2017, ECF No. 188. The § 2255 motion was
then held in abeyance awaiting the decision of the Supreme
Court as to the applicability of Johnson to the
career offender guideline.
the decision of the Supreme Court in Beckles v. United
States, 137 S.Ct. 886 (2017), holding that career
offenders under the Sentencing Guidelines could not raise a
cognizable claim under Johnson, the court permitted
further briefing by the parties, which has been now
completed. The matter is thus ripe for decision.
United States urges the court to dismiss Hudson's §
2255 motion in light of Beckles. Hudson, while
conceding that he was sentenced after United States v.
Booker, 543 U.S. 220 (2005), contends that at the time
of his sentencing in 2008, “courts in the Fourth
Circuit and elsewhere still kept the United States Sentencing
Guidelines effectively mandatory, ” thus attempting to
distinguish Beckles. Reply to Mot. Dismiss 2, May
25, 2017, ECF No. 206.
not find any merit in Hudson's argument. Beckles himself
was sentenced under the 2006 version of the Guidelines, 137
S.Ct. at 890, and the Supreme Court made it clear in his case
that “[b]ecause the advisory Sentencing Guidelines are
not subject to a due process vagueness challenge, §
4B1.2(a)'s residual clause is not void for vagueness,
” id. at 897. To parse the degree of adherence
by the courts to the Guidelines over time is unsupportable.
these reasons, the United States' Motion to Dismiss will
be granted and the defendant's § 2255 motion will be