Opinion
No. 1:16-cv-01250-JDB-egb
08-20-2018
DERRICK DUBOSE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER DIRECTING UNITED STATES TO RESPOND TO PETITION AND DENYING RELIEF UNDER JOHNSON V. UNITED STATES
In September 2016, Petitioner, Derrick Dubose, filed a pro se motion to vacate, set aside, or correct his sentence (the "Petition") under 28 U.S.C. § 2255. (Docket Entry ("D.E.") 1.) Respondent, United States of America, is DIRECTED to file a response to the Petition within twenty-eight days of the entry of this order. Petitioner may file a reply within twenty-eight days of service of the response.
In its discussion of the underlying criminal matter, the Court will refer to Dubose as the "Defendant."
Unless otherwise noted, record citations in this order are to Case Number 1:16-cv-01250-JDB-egb.
On the same day the inmate filed the Petition, a text entry was entered by the Clerk of Court indicating that Dubose had requested relief under Johnson v. United States, 135 S. Ct. 2551 (2015). (D.E. 3.) Although the Petition mentions Johnson, the inmate does not appear to be arguing that the career offender provision of the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G") under which he was sentenced is void for vagueness. Nonetheless, the Court will address the applicability of Johnson to Petitioner's case.
"[A] defendant is a career offender if (1) [he] was at least eighteen years old at the time of the instant offense, (2) the instant offense 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.'" United States v. Alexander, 686 F. App'x 326, 327 (6th Cir. 2017) (per curiam) (quoting U.S.S.G. § 4B1.1(a)).
BACKGROUND
In April 2014, a federal grand jury returned a five-count indictment charging Dubose with marijuana trafficking (Counts 1 and 5), cocaine base trafficking (Counts 2 and 3), and MDMA trafficking (Count 4). (No. 1:14-cr-10036-JDB-1, D.E. 2.) In March 2015, the Defendant pleaded guilty to Count 2 pursuant to an agreement with the Government. (Id., D.E. 37-39.) At sentencing, Dubose was determined to be a career offender under U.S.S.G. § 4B1.1 based on Tennessee convictions for delivery and sale of a controlled substance. (Id., D.E. 49 at PageID 95-96; Presentence Report ¶¶ 24, 38, 40.) The Court imposed a sentence of 120 months and three years of supervised release, with the sentence to run concurrently with four unexpired state sentences. (No. 1:14-cr-10036-JDB-1, D.E. 42.) Defendant took an unsuccessful direct appeal. (Id., D.E. 57.)
3, 4 methylenedioxy-methamphetamine. www.drugabuse.gov/publications/drugfacts/mdma-ecstasymolly. --------
DISCUSSION
A prisoner seeking to vacate his sentence under § 2255 "must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).
In Johnson, the United States Supreme Court addressed the constitutionality of the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). See Johnson, 135 S. Ct. at 2556-57. Under the ACCA, a person who is convicted of being a felon in possession of a firearm and who "has three previous convictions . . . for a violent felony or a serious drug offense . . . committed on occasions different from one another . . . shall be . . . imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as
any crime punishable by imprisonment for a term exceeding one year . . . that . . . (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.18 U.S.C. § 924(e)(2)(B). The phrase "otherwise involves conduct that presents a serious potential risk of physical injury to another" is known as the "residual clause." Johnson, 135 S. Ct. at 2555-56.
The Court in Johnson held that the residual clause was unconstitutionally void for vagueness. Id. at 2256-57. Therefore, an enhanced sentence under the residual clause violated due process as guaranteed by the Fifth Amendment. Id.
The ruling in Johnson did not affect Petitioner's designation as a career offender under the Guidelines. Even if Johnson called into question the Guidelines' definition of "crime of violence," Dubose's status as a career offender was not based on any crimes of violence but, rather, on two controlled substance offenses. See, e.g., Smith v. United States, Nos. 3:11-CR-115-TAV-HBG-1, 3:14-CV-339-TAV, 2017 WL 151065, at *6 (E.D. Tenn. Jan. 13, 2017) (holding Johnson irrelevant where enhancement was based on drug convictions). Moreover, on March 6, 2017, the Supreme Court refused to extend Johnson's reasoning to the Guidelines' career offender provisions. See Beckles v. United States, 137 S. Ct. 886, 892 (2017). The Court explained that, "[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences." Id. The Guidelines, therefore, "are not subject to a vagueness challenge under the Due Process Clause." Id.
Accordingly, relief under Johnson is DENIED.
IT IS SO ORDERED this 20th day of August 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE