United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
Wendell Hairston, a federal inmate, 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 a July 13, 2016 Order, this
court 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, 16-7056.
Brown, too, now has been decided. 868 F.3d 297 (4th
Cir. 2017). Based on those decisions, and after review of the
complete record, I must dismiss Hairston's § 2255
motion as untimely. His supplemental motion for
reconsideration of my intervening order granting him a
reduction in his sentence pursuant to the First Step Act,
Pub. L. No. 115-015 § 404, 132 Stat. 5194 (2018), will
pleaded guilty to knowingly and intentionally possessing with
the intent to distribute more than 50 grams of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). (Plea Agree, at 1-2 [ECF No. 31].) The Presentence
Investigation Report ("PSR") recommended that
Hairston be classified as a career offender because he had
"at least two prior felony convictions of either a crime
of violence or a controlled substance offense." U.S.S.G.
§ 4Bl.l(a). The PSR provided the following convictions,
which supported Hairston's career offender status: a 1993
Virginia conviction for two counts of selling cocaine, a 1998
Virginia conviction for assault on a police officer, and a
2000 Virginia conviction for assault on a police
officer. (PSR ¶¶ 35, 40, 42 [ECF No.
50].) Because of Hairston's career offender status, the
PSR recommended a guideline range of 262 to 327 months'
incarceration. (Id. ¶ 71.) I sentenced Hairston
to 262 months' imprisonment. (Judgment pg. 2, Dec. 8,
2006 [ECF No. 36].) Hairston filed a request for
reconsideration, which was denied, and notice of appeal to
the Fourth Circuit, which was also denied. [ECF No, 46, 47,
54.] Hairston also filed a 28 U.S.C. § 2255 petition in
2013, which was denied as untimely. (Mem. Op. pg. 4, Mar. 24,
2014 [ECF No. 70].)
September 8, 2015, pursuant to Standing Order 2015-5, this
court appointed the Federal Public Defender to represent
Hairston with regard to any claim that he might have pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015).
ECF 74. Following authorization from the Fourth Circuit to
file a second or successive § 2255 motion, defense
counsel for Hairston filed such a motion, asserting that
Hairston should not have been sentenced as a career offender
argues that he should not have been designated as a career
offender and challenges the constitutionality of 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." Beckles forecloses this
Supreme Court, in Johnson, had previously struck
down as unconstitutionally vague, an identically worded
residual clause in the Armed Career Criminal Act
("ACCA"), a federal statute, 18 U.S.C. §
924(e)(2)(B). 135 S.Ct. at 2563. Accordingly, the residual
clause in the ACCA can no longer be used to increase a
defendant's sentence and applies retroactively on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). However, the Supreme Court, in
Beckles, held that the residual clause in the
Guidelines was not subject to a similar constitutional
challenge because the Guidelines merely "guide the
exercise of a court's discretion" and do not
"fix the permissible range of sentences" that a
defendant faces. 137 S.Ct. at 895. Accordingly,
Hairston's motion is untimely and must be dismissed.
Accord Brown, 868 F.3d at 301-03; Lloyd v.
United States. No. 5:ll-cr-41-lH, 5:16-cv-618-H, 2019 WL
166545, at *1 (E.D. N.C. Jan. 8, 2019); United States v.
Osbey. No. 7:07-711-TMC, 2018 WL 1748274, at *2 (D.S.C.
Jan. 25, 2018).
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 petitioner's case." (§ 2255 Supp.
Mot. at 2 [ECF No. 89].) Accordingly, Hairston asserts that
Beckles is not controlling because his career
offender status under the newly advisory guideline regime
more closely resembles an armed career criminal designation
under the ACCA. This argument is unavailing.
sentenced Hairston on December 7, 2006, almost two years
after the Supreme Court, in United States v. Booker.
543 U.S. 220 (2005), held that the United States Sentencing
Guidelines were advisory rather than mandatory. In sentencing
Hairston, I applied the extant-advisory Guidelines and
sentenced him to 262 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, Hairston's
assertion that I failed to conform to Booker's
holding and that the degree of my adherence to
Booker should somehow be parsed over time, is
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
2018, Congress passed and the President signed into law the
First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018),
which sought, among other things, to apply the benefits of
the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124
Stat. 2372 (2010), retroactively. Pursuant to a
recommendation from the United States Probation Office, I
granted Hairston a two-point reduction in his offense level
and decreased his term of imprisonment from 262 months to 188
months. He now asks for further relief, recognizing that his
§ 2255 motion is foreclosed by law. (See Mot.
To Reconsider Length of Sentence ¶ 3, Feb. 28, 2019 [ECF
contends that, if he were not considered a career offender,
his guidelines sentence would be 70-87 months as opposed to
the 188-235 months. He also maintains that his designation as
a career offender was in error, saying that two of the three
predicate offenses identified in his Presentence Report no
longer or never qualified as predicate offenses. This,
he contends, in ...