Opinion
CRIMINAL NO. 12-0056-WS
09-12-2016
UNITED STATES OF AMERICA v. REGINALD MARTEZ ROBINSON, Defendant.
ORDER
The defendant has filed a motion for appointment of counsel to assist him in seeking relief under Johnson v. United States, 135 S. Ct. 2551 (2015). (Doc. 247). The Johnson Court "h[e]ld that imposing an increased sentence under the residual clause of the Armed Career Criminal Act ["ACCA"] violates the Constitution's guarantee of due process." Id. at 2563.
The defendant was not sentenced under ACCA, but he was sentenced as a career offender. To be a career offender, a defendant must "ha[ve] at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). As under ACCA, the Guidelines define a "crime of violence" in three ways: (1) a crime having as an element the use or attempted use of force (the "elements" clause); (2) the crimes of burglary of a dwelling, arson or extortion (the "enumerated" clause); and (3) any other crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the "residual" clause). Id. § 4B1.2(a).
The Johnson Court ruled only that the "residual" clause of ACCA is unconstitutional. The defendant can have no hope of relief unless both: (1) the Johnson rule extends to the career offender guideline; and (2) he was characterized as a career offender as a result of counting offenses that are crimes of violence only under the residual clause.
The Eleventh Circuit has ruled that Johnson does not extend to the career offender guideline. United States v. Matchett, 802 F.3d 1185, 1189 (11th Cir. 2015). The Supreme Court has granted a petition for writ of certiorari in another case to resolve that very question. Beckles v. United States, 136 S.Ct. 2510 (2016). The first issue listed above thus appears to remain an open question.
The second, however, is not. When sentenced, the defendant had four prior adult felony convictions: (1) distribution of a controlled substance; (2) possession with intent to distribute crack cocaine; (3) first degree robbery; and (4) conspiracy to commit bank robbery. (Doc. 239 at 17-19). The first two of these offenses are controlled substance offenses. Because a defendant is a career offender if he has two prior controlled substance offenses, the defendant was correctly deemed a career offender regardless of whether his other two offenses fall within the residual clause. Moreover, first degree robbery under Alabama law is a crime of violence under the elements clause, not under the residual clause. Levert v. United States, 2016 WL 4070147 at *4 (N.D. Ala. 2016).
Only convictions for crimes committed after the defendant turned 18 can be counted for purposes of the career offender guideline. U.S.S.G. § 4B1.1(a). --------
Because the defendant's career offender status was not based on a prior felony conviction for a crime of violence under the residual clause, he cannot possibly benefit from Johnson, even if the Supreme Court ultimately declares that Johnson applies to the career offender guideline. Because the defendant cannot obtain any relief from Johnson, his motion for appointment of counsel to pursue such a claim is denied.
DONE and ORDERED this 12th day of September, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE