United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser, Senior United States District Judge
Wendell Hairston, a federal inmate, has filed a motion
pursuant to 28 U.S.C. § 2255, arguing that his
designation as a career offender under United States
Sentencing Guideline ("U.S.S.G.") §§
4B1.1 and 4B1.2, is unlawful. In a July 13, 2016 Order, this
court stayed the case pending a decision by the Supreme Court
in Beckles v. United States, No. 15-8544. The
Supreme Court has now decided Beckles, 137 S.Ct. 886
(2017); based on that decision, and a review of the complete
record, the court must grant the government's motion to
dismiss and dismiss Hairston's § 2255 motion.
pleaded guilty to knowingly and intentionally possessing with
the intent to distribute more than 50 grams of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). Plea Agree, at 1-2, ECF No. 31. The Presentence
Investigation Report ("PSR") recommended that
Hairston be classified as a career offender because he had
"at least two prior felony convictions of either a crime
of violence or a controlled substance offense." U.S.S.G.
§ 4Bl.l(a). The PSR provided the following convictions,
which supported Hairston's career offender status: a 1993
Virginia conviction for two counts of selling cocaine, a 1998
Virginia conviction for assault on a police officer and a
2000 Virginia conviction for assault on a police
officer. PSR ¶¶ 35, 40, 42, ECF No. 50.
Because of Hairston's career offender status, the PSR
recommended a guideline range of 262 to 327 months'
incarceration. Id.¶ 71. I sentenced Hairston to
262 months' imprisonment. Judgment at 2, ECF No. 36.
Hairston filed a request for reconsideration, which was
denied and notice of appeal to the Fourth Circuit, which was
also denied. ECF No, 46, 47, 54. Hairston also filed a 28
U.S.C. § 2255 petition in 2013, which was denied as
untimely. Mem. Op. at 4, ECF No. 70.
September 8, 2015, pursuant to Standing Order 2015-5, this
court appointed the Federal Public Defender to represent
Hairston with regard to any claim that he might have pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015).
ECF 74. Following authorization from the Fourth Circuit to
file a second or successive § 2255 motion, defense
counsel for Hairston filed such a motion, asserting that
Hairston should not have been sentenced as a career offender
argues that he should not have been designated as a career
offender and challenges the constitutionality of U.S.S.G.
§ 4B 1.2(a), which defined a "crime of violence,
" in part, as an offense that "otherwise involves
conduct that presents a serious potential risk of physical
injury to another, " referred to as the "residual
clause." Beckles forecloses this argument.
Supreme Court, in Johnson, had previously struck
down as unconstitutionally vague, an identically worded
residual clause in the Armed Career Criminal Act
("ACCA"), a federal statute, 18 U.S.C. §
924(e)(2)(B). 135 S.Ct. at 2563. Accordingly, the residual
clause in the ACCA can no longer be used to increase a
defendant's sentence and applies retroactively on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). However, the Supreme Court, in
Beckles, held that the residual clause in the
Guidelines was not subject to a similar constitutional
challenge because the Guidelines merely "guide the
exercise of a court's discretion" and do not
"fix the permissible range of sentences" that a
defendant faces. 137 S.Ct. at 895.
in a supplemental brief, argues that even though he was
sentenced as a career offender under the advisory guideline
scheme, "courts in the Fourth Circuit and elsewhere
still kept the United States Sentencing Guidelines
effectively mandatory, and applied them as effectively
mandatory in petitioner's case." § 2255 Supp.
Mot. at 2, ECF No. 89. Accordingly, Hairston asserts that
Beckles is not controlling because his career
offender status under the newly advisory guideline regime
more closely resembles an armed career criminal designation
under the ACCA. This argument is unavailing.
sentenced Hairston on December 7, 2006, almost two years
after the Supreme Court, in United States v. Booker.
543 U.S. 220 (2005), held that the United States Sentencing
Guidelines were advisory rather than mandatory. In sentencing
Hairston, I applied the extant-advisory Guidelines and
sentenced him to 262 months, a within-Guidelines sentence. I
did not consider the Guidelines mandatory at that time and
did not apply them as such. As a result, Hairston's
assertion that I failed to conform to Booker's
holding and that the degree of my adherence to
Booker should somehow be parsed over time, is
has not shown that he is eligible for relief. Accordingly,
his § 2255 petition must be dismissed. See 28
U.S.C. § 2255(a) (providing that for a defendant to
obtain relief on collateral review, he 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 a
sentence;" or (3) that "the sentence was in excess
of the maximum authorized by law, or is otherwise subject to
reasons stated, I grant the government's motion to
dismiss and dismiss the motion to vacate, set aside, or
correct sentence. Based upon my finding that Hairston has not
made the requisite substantial showing of a denial of a
constitutional right as ...