Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spencer v. United States

United States District Court, N.D. Alabama, Western Division

May 11, 2017

MICHAEL DEWAYNE SPENCER, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge.

         Michael 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 denied.

         I. Background

         On 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).[1]

         II. Discussion

         Johnson 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 application here.

         However, 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 another.

§ 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.

         Spencer's 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).

         Even if 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.