United States District Court, W.D. Virginia, Harrisonburg Division
Glen E. Conrad United States District Judge.
Petrovich Mazur, a federal inmate proceeding pro se, moved to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The government filed a motion to dismiss.
Accordingly, this matter is ripe for disposition. Upon review
of the record, the court concludes that Mazur's claims
lack merit, and the government's motion to dismiss must
March 15, 2012, a federal grand jury indicted Mazur and
various codefendants in a 13-count indictment. Mazur was
charged with: conspiracy to distribute 1, 000 grams of a
mixture and substance containing a detectable amount of
heroin, in violation of 21 U.S.C. § 846 ("Count
One"); stealing a firearm from a licensed dealer, in
violation of 18 U.S.C. §§ 922(u) and 922(i)(1)
("Count Six"); possessing stolen firearms, in
violation of 18 U.S.C. § 922(j) ("Count
Seven"); and using and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) ("Count Eight").
Indictment at 1-4, ECF No. 3.
proceeded to trial. A jury found him guilty of conspiracy to
distribute a mixture and substance containing a detectable
amount of heroin, a lesser included offense of Count One, as
well as the other three charges. Jury Verdict at 1-2, ECF No.
456. The Probation Office prepared a presentence
investigation report ("PSR"). For Counts One, Six,
and Seven, it recommended a total offense level of 28, which
included a four-point enhancement for wearing a bullet proof
vest while burglarizing a firearms store, a criminal history
category of II, and an advisory guideline range of 87 to 108
months' imprisonment. PSR ¶¶ 27, 57, ECF No.
569. For Count Eight, the PSR recommended a statutory
mandatory minimum of 60 months' imprisonment to run
concurrently to any other sentence imposed. Id.
August 6, 2013, the court sentenced Mazur to a total term of
141 months' imprisonment, which consisted of 81
months' imprisonment on Counts One, Six and Seven, and 60
months' imprisonment on Count Eight, to run
consecutively. Judgment at 3, ECF No. 567. Mazur appealed.
The United States Court of Appeals for the Fourth Circuit
affirmed, in part, and reversed, in part, and remanded for
the district court to provide a more detailed drug weight
calculation. United States v. Mazur. 571 F.App'x
234, 237 (4th Cir. 2014) (unpublished). At resentencing, the
court imposed the same sentence. Amended Judgment at 3, ECF
No. 619. Mazur again appealed, and his conviction was
affirmed. United States v. Mazur, 599 F.App'x
109, 110 (4th Cir. 2015). His sentence was subsequently
lowered to 130 months' imprisonment due to Amendment 782
to the United States Sentencing Guidelines. Mazur filed a
petition for writ of certiorari with the Supreme Court of the
United States, which was denied. Mazur v. United
States, 136 S.Ct. 186 (2015).
filed this § 2255 motion, arguing that he is entitled to
relief following the Supreme Court's recent decisions in
Johnson v. United States, 135 S.Ct. 2551 (2015) and
Welch v. United States. 136 S.Ct. 1257 (2016).
Pursuant to Standing Order 2015-5, the court appointed
counsel to represent Mazur with regard to any claim he might
raise under Johnson. Counsel notified the court that
counsel would not be filing an amended § 2255 on
Mazur's behalf and moved to withdraw, which the court
granted. Order at 1, ECF No. 686. The court stayed
Mazur's case, pending a decision by the Supreme Court in
Beckles v. United States, 137 S.Ct. 886 (2017). The
Supreme Court issued a decision in Beckles on March
6, 2017, making this matter ready for adjudication.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was "imposed
in violation of the Constitution or laws of the United
States;" (2) that "the court was without
jurisdiction to impose such sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Mazur bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Miller v. United States. 261 F.2d 546, 547
(4th Cir. 1958).
§ 2255 motion, Mazur raises the following claims for
relief: (1) he received an illegal sentence following the
Supreme Court's recent decision in Johnson; (2)
he is entitled to a reduced sentence because he did not use
or employ a firearm; and (3) he is entitled to a reduction in
his advisory guideline range under United States Sentencing
Guideline ("U.S.S.G.") § 2K2.1. None of these
claims has merit.
is not entitled to relief under Johnson. In
Johnson, the Supreme Court reviewed the Armed Career
Criminal Act ("ACCA") and limited the types of
predicate offenses that could be used to support an enhanced
sentence for a defendant who was convicted of being a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g). Specifically, the Supreme Court concluded that the
portion of the ACCA, which defined a "violent
felony" as an offense that "otherwise involves
conduct that presents a serious potential risk of physical
injury to another, " was unconstitutionally vague.
Johnson, 135 S.Ct. at 2563.
however, was not convicted of a § 922(g) charge.
Instead, a jury found him guilty, in addition to a drug
count, of stealing a firearm from a licensed dealer under
§ 922(u), possessing stolen firearms under §
922(j), and using and carrying a firearm during and in
relation to a drug trafficking crime under §
924(c)(1)(A). He did not receive an enhanced sentence for
those firearms-related crimes based on predicate offenses for
violent felonies. Mazur argues that his sentence was enhanced
because of the presence of a firearm. This is not the case.
He was found guilty of possessing a firearm in relation to a
drug trafficking crime, a separate count of conviction, which
statutorily requires a mandatory minimum consecutive sentence
of five years' incarceration. 18 U.S.C. §
924(c)(1)(A)(i). The court so sentenced him. Moreover, his
sentence under § 924(c) was predicated on a drug
trafficking offense and not on a crime of violence. See 18
U.S.C. § 924(c)(1)(A) (allowing for a conviction for
using and carrying a firearm during and in relation to a drug
trafficking crime or a crime of violence). Accordingly,
Johnson is inapplicable to his claim.
also argues that he unlawfully received a four-point
enhancement to his base offense level, pursuant to U.S.S.G.
§ 3B1.5(2)(B), for wearing a "bulletproof vest
while burglarizing" a business. PSR ¶ 27, ECF No.
10. His claim is not that he did not wear a bulletproof vest,
but rather that the enhancement is no longer constitutional
following Johnson. This argument, too, fails.
Section 3B1.5(2)(B) provides for a four-point enhancement
"[i]f the defendant was convicted of a drug trafficking
crime or a crime of violence" and "the defendant
used body armor during the commission of the offense."
U.S.S.G. § 3B1.5(2)(B). Mazur used body armor in the
commission of a burglary which, at the time of his
sentencing, qualified as a "crime of violence." See
Leocal v. Ashcroft543 U.S. 1, 10 (2004) (construing
the residual clause of 18 U.S.C. § 16(b) and explaining
that "burglary would be covered ... because burglary, by
its nature, involves a substantial risk that the burglar will
use force against a victim in completing the crime").
The Guidelines definition of a "crime of violence"
is not subject to constitutional challenge in this context.
First, the definition of a "crime of violence" is
not the same as that of a "violent felony" in the
ACC A, and does not suffer from the same language held to be
unconstitutional in Johnson. Second, even if the
definitions were the same, any claim that Mazur might make
that the sentence he received based on his advisory guideline
range is unconstitutional following Johnson, has
been foreclosed by Beckles. 137 S.Ct. at 895
(holding that because the Guidelines merely ...