United States District Court, W.D. Virginia, Big Stone Gap 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, Ira Stanford Mullins, Jr., has filed an authorized
successive Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255, arguing that his sentence
imposed in 2000 as a career offender is unlawful. I stayed
his case pending resolution by the United States Court of
Appeals for the Fourth Circuit of 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 Mullins' motion must be
dismissed as untimely.
January 4, 2000, Mullins pleaded guilty to bank robbery, in
violation of 18 U.S.C. §§ 2 and 2113(a).
Mullins' 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. Sentencing Commission Guidelines Manual
(“USSG”) § 4B1.1 (1999). PSR ¶ 46, ECF
No. 43. The predicate offenses supporting his status as a
career offender included three prior Georgia convictions for
burglary, and a Georgia conviction for aggravated assault
with intent to rob. Id. ¶¶ 80 - 83. On
March 24, 2000, I sentenced Mullins to a total of 240
months' incarceration and three years of supervised
release, after concluding that he was a career offender.
Mullins did not appeal. Mullins was released from prison on
December 21, 2016. He is currently serving his three-year
term of supervised release, and thus his § 2255 motion
is not moot. United States v. Pregent, 190 F.3d 279,
283 (4th Cir. 1999) (noting that a defendant on supervised
release is considered to be in custody for purposes of a
§ 2255 motion).
§ 2255 Motion, Mullins challenges the constitutionality
of USSG § 4B1.2(a), which at the time of his sentencing
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, Mullins' 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 892.
Mullins argues that the determination that he qualified as a
career offender is governed by Johnson, not
Beckles. I sentenced Mullins in 2000, under the
pre-Booker mandatory Guideline 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. 82.
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. Brown, 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 Guidelines 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).
Mullins did not file this § 2255 petition until 2016, 16
years after his judgment became final, the petition is time
barred and must be dismissed. Id. at 304.
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, 16-7056 (4th Cir. Oct. 5,
2017). The Fourth Circuit denied the ...