United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
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
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. 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.
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.
Johnson Claim: Manslaughter Conviction and § 2K2.1(a)(2)
Merits of Claim Under Johnson
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. 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
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.” See § 4B1.2(a)(2),
id., cmt. n. 1; 18 U.S.C. § 924(e)(2)(B).
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.
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.
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).
Waiver Provision ...