Opinion
CRIMINAL NO. 1:11-cr-62-LG-RHW CIVIL NO. 1:16-cv-218-LG
05-04-2017
VERTIS RAYMOND PETITIONER v. UNITED STATES OF AMERICA RESPONDENT
ORDER DENYING MOTION MADE PURSUANT TO 28 U.S.C. § 2255 AND DENYING AS MOOT MOTION FOR VOLUNTARY DISMISSAL
BEFORE THE COURT is the [35] Motion to Vacate, Set Aside, or Correct a Federal Sentence Pursuant to 28 U.S.C. § 2255 filed by Defendant Vertis Raymond. Raymond was sentenced to 115 months and three years supervised release for being a felon in possession of a firearm. In his § 2255 Motion, Raymond challenges the constitutionality of the United States Sentencing Guideline § 4B1.2(a)(2) and further argues that his previous Florida state court conviction for felony battery should not be considered a "crime of violence" under § 4B1.2(a). Having reviewed the applicable law, the Court finds that Raymonds's Motion should be denied. Raymond's Motion for Voluntary Dismissal [39] will be denied as moot.
Raymond was sentenced under U.S.S.G. § 2k2.1 which expressly adopts the "crime of violence" definition stated in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2. Section 4B1.2(a)(2) was amended on March 10, 2017, however, the Court must analyze the text at the time of sentencing.
The Government objected to Defendant's Motion for voluntary dismissal. --------
Section 2255 provides four grounds for relief: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2225(a). Raymond contends that: (1) the residual clause in § 4B1.2(a)(2) is unconstitutionally vague; and (2) his prior Florida state court conviction for felony battery is not a "crime of violence" under § 4B1.2(a) because Florida's felony battery statute does not meet the physical force requirement of § 4B1.2(a)(1). The Court discusses each contention in turn below.
(1) "Unconstitutionally Vague"
In Johnson v. United States, 135 S. Ct. 2551 (2015), the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague because "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id. at 2557. The Johnson Court left open the question, however, of whether the identically worded residual clause contained in Sentencing Guideline § 4B1.2(a)(2) - challenged here by Raymond - was constitutional.
On March 6, 2017, the Court answered that question in Beckles v. United States, 137 S. Ct. 886 (2017). Specifically the Court found that "[u]nlike the ACCA, . . . the advisory guidelines do not fix the permissible range of sentences." Id. at 892. "To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id. "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." Id. Thus, pursuant to Beckles, the Court finds that Raymond is not entitled to 2255 relief based on the challenge that § 4B1.2(a)(2) is unconstitutionally vague. See, e.g., United States v. Garza, No. 2:11-CR-117-1, 2017 WL 932933, at *2 (S.D. Tex. Mar. 8, 2017).
(2) "Crime of Violence"
Raymond further contends that because the residual clause of § 4B1.2(a)(2) is unconstitutionally vague and because felony battery is not an enumerated offense under § 4B1.2, "the only option under which this offense can be a crime of violence is the physical force clause of § 4B1.2(a)(1)." (Pet. 14, ECF No. 35). However, this argument necessarily assumes that the residual clause is unconstitutional, which Beckles holds it is not. Because Raymond has not challenged whether felony battery qualifies as a "crime of violence" under the residual clause, the Court need not decide whether felony battery also qualifies under the physical force clause of § 4B1.2(a)(1). See, e.g., United Stated v. Tibbs, No. 15-1060, 2017 WL 1314933, at *4 (6th Cir. Apr. 10, 2017); see also Velez v. United States, Nos. 2:08-CR-68-JRG-MCLC-1; 2:13-CV-179-JRG, 2017 WL 1026497, at *2 (E.D. Tenn. Mar. 15, 2017).
IT IS THEREFORE ORDERED AND ADJUDGED that Petitioner Vertis Raymond's [35] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Petitioner Vertis Raymond's [39] Motion for Voluntary Dismissal is DENIED as moot.
SO ORDERED AND ADJUDGED this the 4th day of May, 2017.
/s/_________
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE