United States District Court, E.D. Virginia, Richmond Division
A.GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
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.)
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.)
PERTINENT FACTUAL AND PROCEDURAL HISTORY
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
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 violenceand 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.
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.
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.
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. As no error occurred, Tillery's Motion
to Correct (ECF No. 136) will be DENIED.
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. 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.
Tillery's Challenge to His Firearm Conviction
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, ...