United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge.
Spencer (“Spencer”) has filed with the Clerk of
this Court a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The
Government has responded in opposition to the motion. (Doc.
5.) For the following reasons, the motion is due to be
November 29, 2011, Spencer pled guilty to three counts of
distributing cocaine base, violations of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). At sentencing, Spencer
was classified as a career offender under the advisory
Sentencing Guidelines (“U.S.S.G.”), § 4B1.1,
based on his prior Alabama convictions for second-degree
assault and first-degree marijuana possession (for other than
personal use). This Court sentenced him to serve 120
months' imprisonment on each count, concurrently.
Judgment was entered on August 24, 2012. Spencer did not
appeal. Now, more than four years later, Spencer has filed
this § 2255 motion seeking relief from his sentence on
the basis of the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015).
held that the residual-clause portion of 18 U.S.C. §
924(e)(2)(B)(ii)-defining “violent felony” within
the Armed Career Criminal Act (“ACCA”)-is
unconstitutionally vague. Id. at 2557. Spencer was
convicted of drug offenses and not unlawful possession of a
firearm or any other offense under U.S.C. § 922(g), the
only crime to which the ACCA applies. See United States
v. McGatha, 891 F.2d 1520, 1526 (11th Cir. 1990)
(“The mandatory sentencing provisions of § 924(e)
[are] applicable only after the defendant has been convicted
of one of the predicate offenses described in § 922(g) .
. . .”). Thus, Johnson has no direct
Spencer asks this Court to apply Johnson to the
Sentencing Guidelines that were in effect at the time of his
sentencing and, more specifically, to this Court's
determination that he is a career offender under U.S.S.G.
§ 4B1.1. Under the Guidelines, a defendant is a career
offender if he: (1) “was at least eighteen years old at
the time [he] committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that 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.” U.S.S.G. § 4B1.1(a). At the
time of Spencer's sentencing, the Guidelines defined
“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, or
(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
§ 4B1.2(a) (emphasis added). The emphasized clause in
this definition is known as the residual clause. U.S.S.G.
§ 4B1.2(a)(2). Because the Court in Johnson
held that the identically-worded residual clause in the ACCA
was unconstitutionally vague, Spencer contends that the
Guidelines' residual clause within the definition of
“crime of violence” is also void for vagueness.
Thus, he argues that, post-Johnson, his
second-degree assault conviction no longer constitutes a
“crime of violence.” He also asserts that his
conviction for first-degree possession of marijuana (for
other than personal use) is no longer a qualifying offense.
claim fails for several reasons. First, the Supreme Court has
recently squarely rejected his argument that
Johnson's holding applies to the Sentencing
Guidelines. See Beckles v. United States, 137 S.Ct.
886, 890 (2017) (holding that the advisory Sentencing
Guidelines are not subject to vagueness challenges under the
Due Process Clause).
the residual clause of the definition of “crime of
violence” in the Guidelines was void for vagueness,
that conclusion would not impact Spencer's particular
sentence. This is because Spencer's second-degree assault
conviction was, and is, a crime of violence under the
“element's clause” of the definition of
“crime of violence.” See U.S.S.G. §
4B1.2(a)(1) (“The term ‘crime of violence'
means any offense . . . that has as an element the use,
attempted use, or threatened use of physical force against
the person of another[.]”). In Alabama, second-degree
assault can be committed in a number of ways, including when:
(a) A person . . . (1) With intent to cause serious physical
injury to another person, he or she causes serious ...