United States District Court, W.D. Virginia, Charlottesville Division
S. Healey, Assistant United States Attorney, Charlottesville,
Virginia for United States; Lisa M. Lorish, Assistant Federal
Public Defender, Charlottesville, Virginia, for Defendant.
P. JONES UNITED STATES DISTRICT JUDGE.
defendant, John Carrington, 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. After
consideration of the record and applicable case law, I
conclude that Carrington’s motion must be dismissed as
was charged in a Indictment with conspiracy to possess with
intent to distribute and distribute cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. He
proceeded to trial and was found guilty. Carrington’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 ¶ 31, ECF No. 406. The predicate
offenses supporting his status as a career offender included
a prior conviction for two counts of distribution of cocaine,
a prior conviction for Virginia robbery and a prior
conviction for Virginia assault and battery. Id.
¶¶ 40, 41 and 42. On July 13, 1999, the court
sentenced Carrington to a total of 384 months’
incarceration, after concluding that he was a career
offender. Carrington and a codefendant appealed, and the
Fourth Circuit affirmed his conviction and sentence.
United States v. Martin, Nos. 99-4471, 99-4537, 2000
WL 429715, at *3 (4th Cir. Apr. 21, 2000) (unpublished).
Carrington filed a petition for a writ of certiorari to the
Supreme Court which was granted, and the Court vacated and
remanded the case. Carrington v. United States, 121
S. Ct. 750 (2001). The Fourth Circuit then issued a published
opinion, again denying Carrington’s appeal and
affirming his conviction and sentence. United States v.
Carrington, 301 F.3d 204, 213 (4th Cir. 2002).
§ 2255 Motion, Carrington 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, Carrington’s
argument that his crime of violence convictions no longer
support 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
Carrington argues that the court’s determination that
he qualified as a career offender is governed by
Johnson, not Beckles. Carrington was
sentenced under a pre-Booker 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. 398.
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
United States v. 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 297, 299 (4th Cir. 2017).
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. Brown, 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 §
was sentenced in 1999 and his judgment became final in 2002,
following his appeal process. He did not file this §
2255 petition until 2016, 14 years after his judgment became