United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
Ray Dillard, a federal inmate proceeding through counsel, 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 an April 19, 2017 Order, I
stayed the case pending a decision by the Supreme Court in
Beckles v. United States. No. 15-8544. Following the
Supreme Court's decision in Beckles, 137 S.Ct.
886 (2017), the case was again stayed pending resolution by
the United States Court of Appeals for the Fourth Circuit in
United States v. Brown, No. 16-7056. Brown,
too, now has been decided. 868 F.3d 297 (4th Cir. 2017). Based on
those decisions, and a review of the complete record, I must
dismiss Dillard's § 2255 motion.
pleaded guilty, pursuant to a written plea agreement, to
distributing five or more grams of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1). The
Presentence Investigation Report ("PSR")
recommended that Dillard 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 ¶17, ECF No. 86.
On September 25, 2008, I sentenced Dillard to a total term of
188 months' incarceration, after concluding that he was a
career offender based on a prior Virginia conviction for
distribution of cocaine and a prior Virginia conviction for
shooting into an occupied vehicle. I later reduced his
sentence to a term of 150 months' incarceration following
a motion for substantial assistance filed by the government.
Dillard did not appeal.
September 8, 2015, pursuant to Standing Order 2015-5, 1
appointed the Federal Public Defender to represent Dillard
with regard to any claim that he might have pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015). ECF
64. Defense counsel for Dillard filed such a motion,
asserting that, following Johnson, Dillard should
not have been sentenced as a career offender.
§ 2255 petition, Dillard challenges the
constitutionality of former 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." 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)(ii), was unconstitutionally vague
and could not be used to increase a defendant's sentence.
Dillard's argument, that his "crime of
violence" conviction no longer supports his career
offender status because the residual clause in the Sentencing
Guidelines is unconstitutional, however, is foreclosed by
Beckles. In Beckles, the Supreme Court held
that the Sentencing 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. Beckles, 137 S.Ct. at 895. The
Supreme Court established that the Sentencing Guidelines are
advisory, rather than mandatory, in 2005. United States
v. Booker. 543 U.S. 220 (2005).
Dillard, 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 the petitioner's case." § 2255
Supp. Br. at 2, ECF No. 74. Accordingly, Dillard asserts that
Beckles is not controlling because his career
offender status under the newly advisory guideline scheme
more closely resembles an armed career criminal designation
under the ACCA. This argument is unavailing.
sentenced Dillard on September 25, 2008, three years after
Booker was decided. In sentencing Dillard, I applied
the extant-advisory Guidelines and sentenced him to 188
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, Dillard's assertion that I failed to
conform to Booker's holding is without merit.
Moreover, the United States Court of Appeals for the Fourth
Circuit has recently concluded that defendants sentenced as
career offenders under the pre-Booker mandatory Sentencing
Guidelines system cannot obtain relief on collateral review.
Brown, 868 F.3dat304.
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 collateral
reasons stated, I will grant the government's motion to
dismiss and dismiss the motion to vacate, set aside, or
correct sentence. Based upon my finding that Dillard has not
made the requisite substantial showing of a denial of a
constitutional right as required by 28 U.S.C. § 2253(c),
a certificate of appealability is denied.
clerk is directed to forward a copy of this Memorandum
Opinion and ...