Opinion
CASE NO. 2:16-CV-00583 CRIM. NO. 2:12-CR-00030
08-19-2016
RONNIE D GASTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE JAMES L. GRAHAM
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant Pro Se Motion to Vacate under 28 U.S.C. § 2255. (Doc. 39). This matter is before the Court pursuant to its own motion to consider the sufficiency of the petition pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
I. FACTS AND PROCEDURAL HISTORY
On August 16, 2012, Petitioner pleaded guilty pursuant to the terms of his Plea Agreement to possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). (Docs. 18, 23). On June 7, 2013, the District Court imposed 120 months incarceration, followed by five years of supervised release. (Docs. 32, 33). On September 15, 2015, the Court denied Petitioner's Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense. (Doc. 38). On June 23, 2016, Petitioner filed the instant Pro Se Motion to Vacate under 28 U.S.C. § 2255. (Doc. 39). Petitioner asserts that, in view of Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015) (declaring "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act ("ACCA") to be unconstitutionally vague), he was improperly sentenced as a career offender. Under the reasoning of Johnson, Petitioner argues, § 4B1.1 and § 4B1.2 of the United States Sentencing Guidelines are constitutionally invalid, and his prior state court convictions fail to qualify him for career offender status.
II. DISCUSSION
Under the ACCA, a criminal defendant who possesses a firearm after three or more convictions for a "serious drug offense" or a "violent felony" is subject to a minimum sentence of 15 years and a maximum term of life in prison. 18 U.S.C. § 924(e)(1). The ACCA defines the term "violent felony" as follows:
(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—18 U.S.C. § 924(e)(2) (emphasis added). The italicized portion referred to above in subsection (ii) is known as the "residual clause." See Welch v. United States, -- U.S. --, --, 136 S. Ct. 1257, 1261 (2016) (holding that Johnson applies retroactively to cases on collateral review) (citing Johnson, 135 S. Ct. at 2555-56). It is this section of the statute that the Supreme Court in Johnson declared to be unconstitutionally vague.
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
In the Johnson Court's view, the "indeterminacy of the wide-ranging inquiry" made the residual clause more unpredictable and arbitrary in its application than the Constitution allows. Id., at —, 135 S. Ct., at 2557. "Invoking so shapeless a provision to condemn someone to prison for 15 years to life," the Court held, "does not comport with the Constitution's guarantee of due process." Id., at —, 135 S. Ct., at 2560.Welch, 136 S. Ct. at 1262.
Petitioner was not sentenced under the terms of the ACCA, but as a career offender pursuant to U.S.S.G. § 4B1.1(a), which increases the sentencing guideline range of those convicted of a "crime of violence" or a "controlled substance offense" who have at least two prior felony convictions of such offenses.
U.S.S.G. § 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Section 4B1.2(b) defines "controlled substance offense" as
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.And § 4B1.2(a) defines a "crime of violence" as any offense under state or federal law punishable by a term of imprisonment exceeding one year that
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, orU.S.S.G. § 4B1.2(a) (emphasis added).
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The United States Court of Appeals for the Sixth Circuit has invalidated the italicized portion, or "residual clause," of U.S.S.G. § 4B1.2(a)(2), which involves identical language to the portion of the ACCA invalidated in Johnson, as unconstitutionally vague based on the reasoning in Johnson. United States v. Pawlak, 822 F.3d 902, 907 (6th Cir. 2016). The Supreme Court has not yet decided the issue, or determined whether Pawlak constitutes a new rule that is to be retroactively applied on collateral review. See In re Embry, -- F.3d --, 2016 WL 4056056 (6th Cir. July 29, 2016) (successive habeas corpus petition to be held in abeyance in District Court pending the Supreme Court's decision in Beckles v. United States, No. 15-8544, -- U.S. --, 2016 WL 1029080 (U.S. June 27, 2016) (Mem.)). However, even assuming that it does, and assuming further that this action is timely, Petitioner cannot establish a basis for relief under Johnson.
See, e.g., United States v. Massengill, No. 2:14-CR-46-ART-HAI-2, 2016 WL 4014996, at *3-4 (concluding that § 2255 motion is untimely where Johnson had no applicability to the petitioner's career offender status under the United States Sentencing Guidelines). --------
This is because Petitioner's sentence did not involve the residual clause of § 4B1.2(a). See Bryant v. United States, No. 1:16-cv-688, 2016 WL 3251579, at *2 (W.D. Mich. June 14, 2016) (neither Johnson nor Pawlak invalidate a petitioner's sentence where the sentencing court did not rely on the residual clause to apply the career-offender enhancement); Garza v. United States, No. 16-12402, 2016 WL 3682911, at *2 (E.D. Mich. July 11, 2016) (career offender status predicated on prior controlled substance offense unaffected by Johnson); United States v. Massengill, No. 2:14-CR-46-ART-HAI-2, 2016 WL 4014996 (E.D. Ky. July 5, 2016) (Johnson has no applicability where career offender status not based on residual clause); Russell v. United States, Nos. 4:09-cr-12-HAM-SKL, 4:13-cv-58-HSM, 2016 WL 3951144 (E.D. Tenn. July 19, 2016) (Johnson does not apply where prior drug offenses support continued characterization as career offender under United States Sentencing Guidelines) (citing United States v. Jenkins, 613 F. App'x 754, 755 (10th Cir. 2015) (deeming Johnson to be "irrelevant" where career offender enhancement based on prior drug offenses)); United States v. Fisher, No. 5:16-238-DCR, 2016 WL 3906644, at *3 (E.D. Ky. July 14, 2016) (holding the same, and also concluding that the 2255 motion is untimely under because Johnson does not apply).
Petitioner's career offender designation was based on his three prior convictions on controlled substance felony offenses exceeding one year of imprisonment. PreSentence Investigation Report, ¶¶39-41. The PreSentence Investigation Report indicates that, on August 19, 1997, he was sentenced to two years imprisonment on aggravated trafficking in the Franklin County Court of Common Pleas in two separate cases, and on December 1, 2005, he was sentenced to 72 months imprisonment on conspiracy to distribute more than five grams of cocaine base in the United States District Court for the Southern District of Ohio. Id. ¶ 41. These offenses qualified him for career offender status under § 4B1.1, but not by operation of the residual clause of § 4B1.2(a)(2). Petitioner's prior convictions met the definition of a controlled substance offense as set forth in § 4B1.2(b). Petitioner had a resulting total offense level of 31 and criminal history of VI, with a resulting recommended guideline sentence of 188-235 months. The probation officer recommended imposition of 204 months imprisonment. See generally PreSentence Investigation Report. The District Court concluded that Petitioner's career offender status overstated the seriousness of his criminal history, and departed to a criminal history category of V. The Court also granted the government's motion for a downward departure under § 5K1.1, and imposed a sentence of 120 months imprisonment, well below Petitioner's recommended sentence under the United States Sentencing Guidelines. (See Docs. 33, 34).
The record therefore makes clear that Petitioner's status as a career offender relies on the basis of his prior controlled substance offense convictions under § 4B1.2(b), and not by operation of the residual clause. Johnson and Pawlak therefore have no applicability to his case and do not provide the relief Petitioner seeks.
Under these circumstances, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Because "it plainly appears . . . that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4 of the Rules Governing Section 2255 Proceedings.
III. CONCLUSION
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED. Date: August 19, 2016
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE