United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION
M.
HANNAH LAUCK, UNITED STATES DISTRICT JUDGE
Petitioner,
a federal inmate proceeding with counsel, submitted this
motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence. Petitioner asserted that, in light of
the Supreme Court's recent decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), [1] his enhanced
sentence under the United States Sentencing Guidelines
("USSG") as a career offender and for firearms
offenses[2] is unconstitutional. "Recently, the
Supreme Court concluded that the Guidelines are not subject
to a vagueness challenge under the Due Process Clause....
[and that] Johnson's vagueness holding does not
apply to the residual clause in [USSG] § 4B
1.2(a)(2)." United States v. Lee, 855 F.3d 244,
246-47 (4th Cir. 2017) (citation omitted). Thus,
Petitioner's claim lacks merit.[3] Accordingly, the
Government's Motion to Dismiss (ECF No. 42) will be
GRANTED. The § 2255 Motion (ECF No. 36) will be DENIED.
The action will be DISMISSED. A certificate of appealabilty
will be DENIED.[4]
An
appropriate Order shall issue.
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Notes:
[1] As the Supreme Court has
noted,
[u]nder the Armed Career Criminal Act
["ACCA"] ¶ 1984, a defendant convicted of
being a felon in possession of a firearm faces more severe
punishment if he has three or more previous convictions for a
"violent felony, " a term defined to include any
felony that "involves conduct that presents a
serious potential risk of physical injury to
another"
Johnson, 135 S.Ct. at 2555 (emphasis added)
(quoting 18 U.S.C. § 924(e)(2)(B)). This part of the
definition of violent felony "ha[s] come to be known as
the Act's residual clause." Id. at 2556.
The Johnson Court held "that imposing an
increased sentence under the residual clause of the [ACCA]
violates the Constitution's guarantee of due
process." Id. at 2563.
[2] Under USSG § 4B1.1, a defendant
is subject to an enhanced sentence if he has two or more
prior felony offenses for either a controlled substance
offense or a crime of violence. Under the version of §
4B 1.2(a) used at Petitioner's May 2015 sentencing, a
"crime of violence" was defined as:
[A]ny 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,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.
United States Sentencing Guidelines Manual
§ 4B 1.2(a) (U.S. Sentencing Comm'n 2014).
Similarly, under Chapter 2 of the USSG, defendants are
assigned a base offense level for the sentencing guidelines
based upon offense conduct. Petitioner received an enhanced
base offense level of 24 under USSG § 2K2.1(a)(2)
because he "committed any part of the instant offense
subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance
offense." USSG § 2K2.1(a)(2) (2014). For the
purposes of this section, crime of violence "has the
meaning given that term in § 4B 1.2(a)." USSG
§ 2K2.1 cmt. n.1 (emphasis omitted). Thus, USSG §
2K2.1(a)(2) utilized the same definition for "crime of
violence" as contained in the career offender guidelines
and both mirrored ACCA's residual clause.
[3] Petitioner also argues that his 2009
conviction for first degree assault fails to qualify as a
crime of violence under the "force clause" or
"enumerated offenses" clause of USSG §
4B1.1(2) or under USSG § 2K2.1(a)(2). However, these
challenges to his career offender enhancement or base offense
level under the guidelines are not cognizable under 28 U.S.C.
§ 2255. See Lee, 855 F.3d at 246-47; United
States v. Foote,784 F.3d 931, 939-43 (4th Cir. 2015)
(holding that career offender designation is not a
fundamental defect that results in a complete miscarriage of
justice to warrant review of a sentence), cert,
denied,135 S.Ct. 2850 (2017); United States v.
Pregent,190 F.3d 279, 283-84 (4th Cir. 1999)
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