United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
Lamar Toran, a federal inmate proceeding pro se,
submitted this motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence ("§ 2255 Motion,
" ECF No. 1519). Toran asserts that, in light of the
Supreme Court's recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), his enhanced sentence
under the United States Sentencing Guidelines
("USSG") for possession of a firearm is
unconstitutional. (Id. at 4.) The Government
has responded, arguing that Toran's § 2255 Motion is
meritless. (ECF No. 1525.) For the reasons set forth
below, Toran's § 2255 Motion will be DENIED.
2004, Toran pled guilty to conspiracy to commit violations of
the Racketeering Influenced and Corrupt Organizations Act in
violation of 18 U.S.C. § 1962(d), as detailed in Count
One of the Third Superseding Indictment filed against him.
(J. 1, ECF No. 726.) Toran's Presentence Investigation
Report ("PSR") detailed that, "Toran was also
known to carry firearms during the course of the conspiracy.
Therefore, [Toran's] offense level is increased by two
levels pursuant to the [USSG] § 2D 1.1 (b)(1), for
possession of a firearm." (PSR149, ECF No. 1475-1.)
However, Toran's PSR further detailed that his Offense
Level Total was 40, which was calculated by cross-referencing
first-degree murder, pursuant to USSG § 2A1.1(a), with
three-points deducted for acceptance of responsibility.
(Id. Wksht A, at 4; id. Wksht B, at 1;
id. Wksht D, at 1.) Toran's sentencing guideline
range was 360 months to life imprisonment. (Id.
Wksht D, at 1.) On September 27, 2004, the Court sentenced
Toran to 360 months of imprisonment. (J. 2, ECF No. 726.)
sole claim for relief in his § 2255 Motion, Toran states
"Johnson's residual clause [is] unconstitutionally
vague. 2D 1.1 (b)(1) for possession of a firearm is not a
crime of violence." (§ 2255 Mot. 4.)
Johnson, the Supreme Court noted,
[u]nder the Armed Career Criminal Act ["ACCA"]
¶ 1984, a defendant convicted of being a felon in
possession of a firearm faces more severe punishment if he
has three or more previous convictions for a "violent
felony, " a term defined to include any felony that
"involves conduct that presents a serious potential
risk of physical injury to another."
Johnson, 135 S.Ct. at 2555 (emphasis added) (quoting
18 U.S.C. § 924(e)(2)(B)). This part of the definition
of violent felony "ha[s] come to be known as the
Act's residual clause." Id. at 2556. The
Johnson Court held "that imposing an increased
sentence under the residual clause of the [ACCA] violates the
Constitution's guarantee of due process."
Id. at 2563.
however, Toran was never subject to a sentence enhancement
under the ACCA, nor was his sentence driven by an enhancement
under USSG § 2D 1.1 (b)(1). Rather, Toran's Offense
Level Total was calculated by cross-referencing first-degree
murder, pursuant to USSG § 2A 1.1 (a), with three-points
deducted for acceptance of responsibility. (Id.
Wksht A, at 4; id. Wksht B, at 1; id. Wksht
D, at 1.) The ACCA's residual clause that was held
unconstitutional in Johnson was not used in the
determination of Toran's sentence. Because Toran did not
receive a sentence under the ACCA, his assertion that he is
entitled to relief pursuant to Johnson is meritless.
See United States v. Holland, No. 1:01-CR-195-06,
2016 WL 3387170, at *2 (M.D. Pa. June 20, 2016) (concluding
petitioner's sentence was calculated pursuant to USSG
§ 2A1.1 and thus Johnson was inapplicable).
the § 2255 Motion (ECF No. 1519) will be DENIED. The
action will be DISMISSED. A certificate of appealabilty will
appropriate Order shall issue.