United States District Court, W.D. Virginia, Lynchburg Division
K. Moon United States District Judge.
Nikita Jennings, a federal inmate, has filed a motion
pursuant to 28 U.S.C. § 2255, arguing that his enhanced
sentence as a career offender under United States Sentencing
Guideline (“U.S.S.G.”) §§ 4B1.1 and
4B1.2, is unlawful. The government responded, and this matter
is now ripe for adjudication. Based on the Supreme Court
decision in Beckles v. United States, 137 S.Ct. 886
(2017) and a review of the complete record, I must grant the
government's motion to dismiss and dismiss Jennings'
§ 2255 motion.
pleaded guilty, pursuant to a written plea agreement, to
distribution of five grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). The Presentence Investigation Report
(“PSR”) recommended that Jennings receive an
increased sentence because he qualified as a career offender
in that he had “at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). The PSR listed the
following prior convictions as support for Jennings'
career offender enhancement: conspiracy to possess with
intent to distribute cocaine and possession of cocaine, and
possession with intent to distribute imitation cocaine. PSR
¶¶ 19, 33, 36, ECF No. 40. The PSR recommended an
advisory guideline range of 188 to 235 months'
incarceration. Id. ¶ 64. I sentenced Jennings
to a within-guidelines sentence of 188 months'
incarceration. Judgment at 2, ECF No. 36.
argues that his prior drug convictions no longer support his
status as a career offender following the Supreme Court case
of Johnson v. United States, 135 S.Ct. 2551, 2563
(2015). This argument lacks merit.
defendant with two prior convictions for a “controlled
substance offense, ” or a “crime of
violence” is considered a career offender and faces an
increased guideline range. U.S.S.G. § 4B1.1. Jennings
had two prior convictions for a controlled substance offense.
However, he challenges the constitutionality of the
definition of “a crime of violence” in U.S.S.G.
§ 4B1.2(a), which, at the time he was sentenced,
included an offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another, ” referred to as the “residual
clause.” The Supreme Court, in Johnson,
previously concluded that an identically worded residual
clause in a federal statute, 18 U.S.C. § 924(e)(2)(B),
was unconstitutionally vague and could not be used to
increase a defendant's sentence. Johnson, 135
S.Ct. at 2563.
the viability of the residual clause in the guidelines has no
bearing on Jennings' sentence as he was designated a
career offender because of prior drug convictions. Moreover,
even if Johnson had prior convictions that qualified as
crimes of violence under the residual clause, he could not
successfully challenge the guidelines. The Supreme Court, in
Beckles, held that 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, they are not subject
to a constitutional vagueness challenge. 137 S.Ct. at 895.
addition, Jennings prior drug convictions were properly
considered predicate offenses for career offender purposes as
those convictions were controlled substance offenses under
state law “punishable by imprisonment for a term
exceeding one year.” U.S.S.G. § 4B1.2(b). Indeed,
Jennings was sentenced to ten years' incarceration with
nine years suspended on his 2003 conviction for conspiracy to
possess with intent to distribute cocaine, and five
years' incarceration with four years and fifteen days
suspended for his 2005 conviction for possession with intent
to distribute imitation cocaine. Va. Code § 18.2-248.
Jennings' argument that the Virginia state drug state
criminalizes “a much greater swath of conduct than is
prohibited under the Federal guidelines definition of
4B1.2(b)” and therefore, cannot be used to support his
career offender status, is unavailing. Jennings relies on
United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), however that case involved an unusual Texas controlled
substance offense that permits a jury to conviction someone
of “delivery” of a controlled substance simply by
offering to sell it, which “criminalizes a greater
swath of conduct” than the guidelines. 832 F.3d at 576.
However, Va. Code § 18.2-248, the Virginia statute the
formed the basis of Jennings' career offender predicate
convictions-conspiracy to possess with intent to distribute a
controlled substance and possession with intent to distribute
an imitation controlled substance-does not criminalize this
type of less-culpable conduct.
Jennings has not shown that he is eligible for relief and 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
sentence;” or (3) that ...