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United States v. Tillery

United States District Court, E.D. Virginia, Richmond Division

May 10, 2019

UNITED STATES OF AMERICA,
v.
CARTER TILLERY, Petitioner.

          MEMORANDUM OPINION

          JOHN A.GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         The matter is before the Court on remand from the United States Court of Appeals for the Fourth Circuit for consideration Carter Tillery's claims that:

Claim I "In light of Johnson v. United States, 135 S.Ct. 2551 (2015), by way of retroactive application in Welch v. United States, 136 S.Ct. 1257 (2016), Petitioner is no longer a Career Offender." (ECF No. 121, at 4.)[1]
Claim II The decision in Johnson invalidated Tillery's conviction under 18 U.S.C. § 924(c) for using, carrying, and possessing a firearm during and in relation to a crime of violence. (Id. at 5-9.)

         I. PERTINENT FACTUAL AND PROCEDURAL HISTORY

         "[A] grand jury indicted Tillery on August 4, 2010, on two counts: (1) Hobbs Act robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a); and (2) using, carrying, and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)." United States v. Tillery, 702 F.3d 170, 173 (4th Cir. 2012). "On December 14 and 15, 2010, a jury trial was held and Tillery was convicted of both counts. And on August 1, 2011, Tillery was sentenced to 240 months for the robbery and 120 months for the firearms charge to run consecutively for a total of 360 months ...." Id.

         On April 15, 2014, Tillery filed his 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 85) wherein he raised a host of claims. By Memorandum Opinion and Order entered on June 11, 2015, the Court dismissed Petitioner's claims and denied the § 2255 Motion. (ECF Nos. 101, 102.) Tillery appealed. On June 10, 2016, the United States Court of Appeals for the Fourth Circuit remanded the matter to this Court to consider his claims that Johnson v. United States, 135 S.Ct. 2551 (2015) invalidated Tillery's designation as a Career Offender under the Sentencing Guidelines ("USSG") and that Johnson invalidated his firearm conviction. (ECF No. 109.) The Government filed a Motion to Dismiss Tillery's challenge to his firearm conviction contending that it is barred by the relevant statute of limitations. (ECF No. 124.) Thereafter, Tillery filed a series of Motions to Supplement Claim on Remand, ("Motions to Supplement," ECF Nos. 129, 137, 139-41). In his Motions to Supplement, Tillery directs the Court to additional authority that he contends support his claims that Hobbs Act robbery does not constitute a crime of violence[2]and that he was improperly sentenced as a career offender. The Motions to Supplement (ECF Nos. 129, 137, 139-41) will be GRANTED to the extent that the Court will consider the arguments and authority raised therein.

         In some of his Motions to Supplement and his Motion for Reduction in Term of Imprisonment as Result of Amended Guideline Range ("Motion for Reduction," ECF No. 133) Tillery contends that, in light of Amendments to the Sentencing Guidelines, the Court improperly sentenced him as a Career Offender. Once a defendant is sentenced, the Court has no inherent authority to reconsider the defendant's sentence. See United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010) (quoting United States v. Cunningham, 554 F.3d 703, 708 (7th Cir. 2009)). To the extent Tillery wishes to file a motion for a reduction in sentence under 18 U.S.C. § 3582, he may not raise challenges to his original sentence in such a motion. See United States v. Dawkins, 535 Fed.Appx. 307, 308 (4th Cir. 2013) (explaining that challenges to an original conviction and sentence "are not cognizable in a § 3582 proceeding" (citing United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011))). Motions made by defendants under 18 U.S.C. § 3582 may only raise issues related to retroactive amendments to the United States Sentencing Guidelines. See 18 U.S.C. § 3582(c)(2); United States v. Mann, 435 Fed.Appx. 254, 255 (4th Cir. 2011). Because Tillery fails to identify a retroactive amendment in his Motion for Reduction, the Motion for Reduction (ECF No. 133) will be DENIED WITHOUT PREJUDICE. Tillery remains free to file a Motion for Reduction of Sentence under 18 U.S.C. 3582(c) that properly identifies an amendment to the Sentencing Guidelines that applies retroactively. In these § 2255 proceedings, the Court will not further consider Tillery's arguments that his original designation as a Career Offender was erroneous in light of recent amendments to the Sentencing Guidelines.

         As discussed below, the Court finds that all of Tillery's Johnson claims lack merit. See United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (noting that a district court may summarily dismiss a § 2255 motion where "files, and records 'show conclusively that the movant is not entitled to relief" (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992))).

         Lastly, the Court notes that on May 30, 2017, Tillery filed a Motion to Clarify Judicial Error and Set Aside Judgment ("Motion to Correct," ECF No. 136). In the Motion to Correct, Tillery contends that the Court erred when it previously dismissed Claim D and denied his 28 U.S.C. § 2255.[3] As no error occurred, Tillery's Motion to Correct (ECF No. 136) will be DENIED.

         II. ANALYSIS

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act [("ACCA")] violates the Constitution's guarantee of due process." 135 S.Ct. at 2563.[4] The Johnson Court concluded that the way the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), defined "violent felony" was unconstitutionally vague because the clause encompassed "conduct that presents a serious potential risk of physical injury to another," which defied clear definition. Id. at 2557-58 (citation omitted). Subsequently, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that "Johnson announced a substantive rule [of law] that has retroactive effect in cases on collateral review." Id. at 1268.

         A. Tillery's Challenge to His Firearm Conviction

         Tillery contends that after Johnson, Hobbs Act robbery can no longer qualify as a crime of violence under 18 U.S.C. § 924(c)(3), and thus, his conviction for Count Two must be vacated. Although Tillery was not sentenced pursuant to ACCA, he asserts that the residual clause of § 924(c) is materially indistinguishable from the ACCA residual clause (18 ineffective [assistance] because he failed to anticipate a new rule of law." Id. (quoting Kornahrens v. Evatt,66 F.3d 1350, ...


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