United States v. Hawley

          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.

---------

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) ...