Opinion
Cause No. CR 12-64-GF-BMM Cause No. CV 16-59-GF-BMM
06-06-2016
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. KEITH ALLAN DEVEREAUX, Defendant/Movant.
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
This case comes before the Court on a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Defendant Devereaux is a federal prisoner proceeding pro se. He seeks relief under the rule of Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015).
Devereaux pled guilty to committing a robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a) and (b)(1). Under the federal sentencing guidelines, his base offense level was 20. U.S.S.G. § 2B3.1(a). Devereaux received a five-level upward adjustment because he brandished or possessed a firearm, id. § 2B3.1(b)(2), and another two-level upward adjustment because he used pepper spray against another person, causing bodily injury, id. § 2B3.1(b)(3)(A). He also received a three-level downward adjustment for acceptance of responsibility. U.S.S.G. § 3E1.1. His total offense level was 24. Because he had six criminal history points, his criminal history category was III. Presentence Report ¶¶ 28-39, 40-56. His advisory sentencing guideline range was 63-78 months, and he was sentenced to serve 78 months in prison, to be followed by a three-year term of supervised release. See Judgment (Doc. 43) at 1-3.
Neither the offense to which Devereaux pled guilty nor any part of his advisory guideline calculation required the Court to determine what constitutes a "crime of violence." Johnson has no application to Devereaux's case.
A certificate of appealability is not warranted. Devereaux has not made a showing that he was deprived of a constitutional right. Because Johnson is not implicated in Devereaux's case, reasonable jurists would find no basis to encourage further proceedings. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly, IT IS HEREBY ORDERED as follows:
1. Devereaux's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (Doc. 47) is DENIED;
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if Devereaux files a Notice of Appeal;
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 16-59-GF-BMM are terminated and shall close the civil file by entering judgment in favor of the United States and against Devereaux.
DATED this 6th day of June, 2016.
/s/_________
Brian Morris
United States District Court Judge