Opinion
Cr. No. 1:08-729
07-17-2017
Michael Morton, Movant, v. United States of America, Respondent.
ORDER AND OPINION
Movant Michael Morton is an inmate in custody of the Federal Bureau of Prisons. He currently is housed at FCI-Edgefield in Edgefield, South Carolina. This matter is before the court on Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, as amended.
FACTS AND PROCEDURAL HISTORY
On January 29, 2009, Movant pleaded guilty to conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. A presentence investigation report (PSR) was prepared by the United States Probation Office. The PSR noted that Movant has a conviction for strong arm robbery in 1998 in Edgefield County General Sessions Court, Edgefield, South Carolina. ECF No. 679 , ¶ 34.; as well as a conviction in 2005 for strong arm robbery in Aiken County General Sessions Court, Aiken, South Carolina. Id., ¶ 40. Movant's criminal history score was 10. Two points were added pursuant to U.S.S.G. § 4A1.1(d) because Movant was on probation for the offenses of strong arm robbery and theft by receiving stolen property. One additional point was added pursuant to U.S.S.G. § 4A1.1(e) because Movant committed the offense less than two years after his release from custody for the sentence received for strong arm robbery in Edgefield County, South Carolina. Movant's criminal history category was IV. However, Movant was designated as a career offender based on his convictions for breaking and entering and bank robbery. Movant's criminal history category became VI.
The PSR provided for a base offense level of 36. Because Movant was designated as a career offender, his offense level under U.S.S.G. § 4B1.1 became 37. Movant received a three-level reduction for acceptance of responsibility, for a total offense level of 34. On February 26, 2010, Movant was sentenced under the U.S. Sentencing Guidelines to 262 months imprisonment. Judgment was entered March 1, 2010. The Court of Appeals for the Fourth Circuit affirmed the sentence. See United States v. Morton, 422 F. App'x 248 (4th Cir. 2011).
Movant, proceeding pro se, filed a § 2255 motion on March 9, 2012. The court appointed counsel, who filed a supplemental memorandum to Movant's § 2255 motion on June 28, 2016. Movant seeks the benefit of Johnson v. United States,133 S. Ct. 2551 (2015), in which the Supreme Court held that the "residual clause" of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Counsel argued that Johnson applies with equal force to the United States Sentencing Guidelines under which Movant was sentenced. Counsel further argued that Movant's convictions for strong arm robbery do not qualify as "crimes of violence" under the "residual clause" of U.S.S.G. § 4B1.2(a)(2).
On August 4, 2016, upon motion of Respondent, the court stayed the matter pending disposition of United States v. Doctor, 842 F.3d 306 (2017), a case wherein a defendant challenged a district court's determination that strong arm robbery qualifies as a violent felony under the ACCA. The Court of Appeals for the Fourth Circuit decided Doctor on November 21, 2016. The Fourth Circuit observed that strong arm robbery and common law robbery are synonymous terms. Id. at 308, n.1. The Fourth Circuit then applied the categorical approach and concluded that:
South Carolina has defined its common law robbery offense, whether committed by means of violence or intimidation, to necessarily include as an element the 'use, attempted use, or threatened use of physical force against the person of another.' Accordingly, we conclude that Doctor's prior conviction for South Carolina robbery qualifies as a predicate violent felony within the meaning of the ACCA.Id. at 312.
Respondent filed a motion for summary judgment on June 28, 2017. Movant filed a response on July 12, 2017. The matter now is ripe for adjudication.
DISCUSSION
In Johnson the Supreme Court addressed the ACCA, which mandates an enhanced sentence for an offender convicted of being a felon in possession of a firearm if the offender has three or more convictions for a serious drug offense or violent felony. Under 18 U.S.C. § 924(e)(2)(B), the term "violent felony" means
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.
In Johnson, the Court determined that the language known as the residual clause-i.e., "or otherwise involves conduct that presents a serious potential risk of physical injury to another"-is unconstitutionally vague.
Movant received an enhanced sentence not under the ACCA, but under the United States Sentencing Guidelines, which define a "crime of violence" as
any offense under federal or state law, punishable by imprisonment for a term 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). As with the ACCA, the clause beginning with "or otherwise" in this definition is known as the residual clause.
(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.
In Beckles v. United States, 137 S. Ct. 886 (2017), the defendant argued that his conviction for unlawful possession of a firearm fell under the residual clause of § 4B1.2(a)(2), and that the Guidelines' residual clause was unconstitutionally vague under Johnson. The Court found, however, that
the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.Beckles, 137 S. Ct. at 893.
In its motion for summary judgment, Respondent argues that (1) Movant waived his right to contest his sentence in his plea agreement; (2) the decision of the Fourth Circuit in Doctor forecloses Movant's argument that strong arm robbery is not a crime of violence, and (3) Movant's argument regarding the "residual clause" in the sentencing guidelines is precluded by Beckles. Movant, through counsel, concedes this matter and, for the record, contends Beckles was wrongly decided. The court concludes that Movant's § 2255 claim is without merit.
CONCLUSION
For the reasons stated, Movant's § 2255 motion, as supplemented (ECF Nos. 1195, 1199) is denied. Respondent's motion for summary judgment (ECF No. 1238) is granted.
CERTIFICATE OF APPEALABILITY
A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that Movant has not made the requisite showing for the reasons set forth hereinabove. Accordingly, the court denies a certificate of appealability.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge Columbia, South Carolina July 17, 2017