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Reese v. United States

United States District Court, M.D. Alabama, Northern Division

July 17, 2018

JEFFREY MARTEZ REESE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on petitioner Jeffrey Martez Reese's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. For the reasons that follow, the magistrate judge finds that Reese's § 2255 motion should be denied and this case dismissed with prejudice.

         I. BACKGROUND

         On November 4, 2014, Reese pleaded guilty under a plea agreement to possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Doc. No. 11-5. The plea agreement contained a provision by which Reese waived his right to appeal or collaterally attack his conviction and sentence, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. Doc. No. 11-2 at 4-5. Reese's presentence investigation report (“PSI”) noted that he had a two prior convictions that triggered an enhancement to his base offense level under U.S.S.G. § 2K2.1(a)(2): a 2002 Alabama conviction for manslaughter and a 2010 Alabama conviction for possession of marijuana in the first degree.[1] Doc. No. 11-3 at 5, ¶ 17. Reese faced a Guidelines range of 84 to 105 months. Id. at 13, ¶ 63. On February 9, 2015, the district court imposed a sentence of 105 months' imprisonment and entered its judgment. Doc. No. 11-4. Reese filed no appeal.

         On June 20, 2016, Reese filed this § 2255 motion arguing that (1) under the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), his prior conviction for manslaughter no longer qualifies as a predicate for a base offense level enhancement under U.S.S.G. § 2K2.1(a)(2); and (2) under the holding in Descamps v. United States, 570 U.S. 254 (2013), his prior conviction for possession of marijuana in the first degree was not a qualifying controlled substance offense for purposes of § 2K2.1(a)(2). See Doc. Nos. 1 & 2. He maintains he is entitled to be resentenced without application of the § 2K2.1(a)(2) enhancement.

         II. DISCUSSION

         A. Johnson Claim: Manslaughter Conviction and § 2K2.1(a)(2) Enhancement

         1. Merits of Claim Under Johnson

         Under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a serious drug offense is subject to a mandatory minimum sentence of fifteen years' imprisonment.[2] 18 U.S.C. § 924(e)(1). On June 26, 2015, in Johnson v. United States, the Supreme Court held that the ACCA's residual clause-which covered any offense that “otherwise involves conduct that presents a serious potential rise of physical injury to another”-was “unconstitutionally vague.” 135 S.Ct. 2551, 2557 (2015). Based on that holding, the Court concluded that “imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process.” Id. at 2563. In April 2016, in Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court held that the Johnson decision retroactively applies to cases on collateral review.

         Reese argues that, under Johnson, his prior conviction for manslaughter no longer qualifies as a predicate for a base offense level enhancement under U.S.S.G. § 2K2.1(a)(2). Doc. No. 1 at 4; Doc. No. 2 at 3-5. That guideline provides for application of a base offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence of a controlled substance offense.” See U.S.S.G. § 2K2.1(a). Application Note 1 of the Commentary to U.S.S.G. § 2K2.1 defines a “crime of violence” as having “the meaning “given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2, ” which define a “crime of violence” for purposes of the career offender guideline, U.S.S.G. § 4B1.1. The definition of a “crime of violence” in the career offender guideline is nearly identical to the definition of “violent felony” under the ACCA, including its incorporation of a residual clause encompassing crimes that “involve[ ] conduct that presents a serious potential risk of physical injury to another.”[3] See § 4B1.2(a)(2), id., cmt. n. 1; 18 U.S.C. § 924(e)(2)(B).

         The crux of Reese's argument is that, because the residual clause definition of “crime of violence” for purposes of § 2K2.1(a)(2) (via the § 4B1.2 definition) is the same as the language of the ACCA's residual clause struck down in Johnson, it follows that his enhanced sentence under § 2K2.1(a)(2) is also invalid under Johnson. See Doc. No. 2 at 3-5. Reese's argument is unavailing.

         On March 6, 2017, in Beckles v. United States, 137 S.Ct. 886 (2017), the Supreme Court held that the “the advisory Guidelines are not subject to vagueness challenges.” 137 S.Ct. at 890. The Court reasoned that, “[u]nlike the ACCA . . . the advisory [Sentencing] Guidelines do not fix the permissible range. . . . [T]hey merely guide the exercise of a court's discretion in choosing an appropriate sentence within a statutory range.” Id. at 892. The Court further reasoned that, unlike the ACCA, the Sentencing Guidelines “do not implicate the twin concerns underlying the vagueness doctrine-providing notice and preventing arbitrary enforcement.” Id. at ¶ 894.

         Thus, the holding in Beckles-that the advisory Sentencing Guidelines are not subject to vagueness challenges like the one that prevailed in Johnson as to the ACCA's residual clause-forecloses Reese's Johnson claim challenging the use of his manslaughter conviction as one of the predicate convictions for enhancement of his base offense level under U.S.S.G. § 2K2.1(a)(2).

         2. Waiver Provision ...


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