United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia for United States; Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, for
P. JONES UNITED STATES DISTRICT JUDGE.
defendant, Elliot Johnson, has filed a Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255,
arguing that his enhanced sentence as a career offender under
United States Sentencing Guidelines (“U.S.S.G.”)
§§ 4B1.1 and 4B1.2, is unlawful. I stayed his case
pending resolution by the United States Court of Appeals for
the Fourth Circuit in United States v. Brown, which
has now been decided. 868 F.3d 297 (4th Cir. 2017). After
consideration of the record and applicable case law, I
conclude that Johnson’s motion must be dismissed as
was charged in an Superseding Indictment with possession with
intent to distribute and distribution of cocaine base within
1000 feet of a school zone, in violation of 21 U.S.C.
§§ 841(a)(1) and 860(a). He proceeded to trial and
was found guilty. Johnson’s Presentence Investigation
Report (“PSR”) recommended that he 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,” pursuant to U.S.S.G. § 4B1.1. PSR ¶
25, ECF No. 53. The predicate offenses supporting his status
as a career offender included a prior conviction for drug
distribution and a prior conviction for possession of a sawed
off shotgun. Id. ¶¶ 41 and 48. On May 23,
2000, I sentenced Johnson to a total of 262 months’
incarceration, after concluding that he was a career
offender. Johnson appealed, and the Fourth Circuit affirmed
his conviction and sentence. United States v.
Johnson, 246 F.3d 330, 335 (4th Cir. 2001).
§ 2255 Motion, Johnson challenges the constitutionality
of former U.S.S.G. § 4B1.2(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.” He bases his
argument on Johnson v. United States, 135 S. Ct.
2551, 2563 (2015), in which the Supreme Court held 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.
However, Johnson’s argument that his crime of violence
conviction no longer supports his career offender status
because the residual clause in the Guidelines is
unconstitutional, is foreclosed by Beckles v. United
States, 137 S. Ct. 886 (2017). The Supreme Court held
that the Guidelines are not subject to a similar
constitutional challenge as they merely “guide the
exercise of a court’s discretion” and do not
“fix the permissible range of sentences” that a
defendant faces. Id. at 892.
Johnson argues that my determination that he qualified as a
career offender is governed by Johnson, not
Beckles. Johnson was sentenced pre-Booker
under a mandatory Guidelines scheme. United States v.
Booker, 543 U.S. 220, 245 (2005) (holding, in order to
avoid a constitutional violation, that the Sentencing
Guidelines are advisory and not mandatory). Accordingly, he
argues that the mandatory Guidelines, which fixed his
sentencing range, acted as the functional equivalent of a
statutorily imposed sentence, and as a result, the reasoning
of Johnson applies. Suppl. Mem. Supp. § 2255
Mot. 4-5, ECF No. 40.
Beckles court did not address whether a
constitutional infirmity might arise in circumstances where a
defendant was sentenced under the mandatory Guidelines regime
that existed prior to Booker. The Fourth Circuit, in
Brown, was faced with just such a situation, and
ultimately concluded that the defendant was not entitled to
relief because on collateral review, he could not overcome
the stringent timeliness hurdle required by 28 U.S.C. §
2255. 868 F.3d at 299.
a defendant must file a motion under § 2255 within one
year from the date on which the defendant’s judgment
became final. 28 U.S.C. § 2255(f)(1). However, the
statute allows for an additional one-year period to run when
a defendant relies on a rule of constitutional law newly
recognized by the Supreme Court, starting from “the
date on which the right asserted was initially recognized by
the Supreme Court.” Id. § 2255(f)(3). The
Brown court concluded that in neither
Johnson nor Beckles had the Supreme Court
expressly recognized the right of a defendant to obtain
relief who was sentenced as a career offender under a
mandatory Guideline regime. 868 F.3d at 302. By leaving open
that question, the Supreme Court failed to recognize a new
right in the mandatory Sentencing Guideline context.
Id. Accordingly, a defendant sentenced as a career
offender under the mandatory Guidelines could not rely on the
additional one-year limitations period in § 2255(f)(3).
was sentenced in 2000 and his judgment became final following
the denial of his appeal in 2001. He did not file this §
2255 petition until 2016, 15 years after his judgment became
final. Accordingly, his petition is time barred and must be
separate Final Order will be entered forthwith.
 Brown filed a petition for rehearing
and rehearing en banc following the panel decision.
United States v. Brown, No. 16-7056 (4th Cir. Oct.
5, 2017). The Fourth Circuit denied the ...