United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 (Doc. No. 1), petitioner Deandrew Cortez
Davis argues he is entitled to be resentenced in light of the
United States Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). For the reasons
discussed below, the Magistrate Judge finds that Davis's
§ 2255 motion should be denied and this case dismissed
August 25, 2011, Davis pleaded guilty under a plea agreement
to one count of possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) (Count
1); one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g) (Count 3); and
twelve counts of uttering counterfeit Federal Reserve notes,
in violation of 18 U.S.C. § 471 (Counts 4 through 15).
On November 22, 2011, the district court sentenced Davis to
90 months in prison, consisting of 90 months on Count 1 and
Counts 4 through 15, and 90 months on Count 3, all to be
served concurrently. Doc. No. 5-4 at 2; see Doc. No.
16-1. That sentence was ordered to run consecutively to a
54-month custodial term Davis was serving for the revocation
of his supervised release. Id.
sentence imposed by the district court was the product of a
plea agreement by which the government recommended a sentence
of 90 months, which in connection with the district
court's grant of a downward variance, resulted in a
sentence “substantially” below Davis's
calculated Sentencing Guidelines range. Doc. No. 16-1 at
3-11. The district court entered its judgment on November 30,
2011. Doc. No. 5-4 at 1. Davis took no appeal.
6, 2016, Davis filed this § 2255 motion arguing he is
entitled to relief under Johnson v. United States,
135 S.Ct. 2551 (2015). Doc. No. 1 at 4; see Doc. No.
2 at 1-2.
Johnson, the Supreme Court held that the Armed
Career Criminal Act's (“ACCA”) residual
clause-which included in the definition of “violent
felony” any offense that “otherwise involves
conduct that presents a serious potential rise of physical
injury to another”-was unconstitutionally
vague. 135 S.Ct. at 2557. Based on that holding,
the Supreme Court concluded that “imposing an increased
[ACCA] sentence under the residual clause . . . violates the
Constitution's guarantee of due process.”
Id. at 2563.
April 2016, in Welch v. United States, 136 S.Ct.
1257 (2016), the Supreme Court held that Johnson
applies retroactively to cases on collateral review. 136
S.Ct. at 1268. As a result of Johnson and
Welch, inmates sentenced as armed career criminals
based on prior convictions deemed “violent
felonies” under the ACCA's residual clause were
allowed to challenge their ACCA sentences through § 2255
Davis's Claim Under Johnson
sole claim is that his conviction “under 18 U.S.C.
§ 924(c) for carrying a firearm during and in relation
to a ‘crime of violence' . . . does not qualify as
a crime of violence pursuant to the Supreme Court's
decision in Johnson.” Doc. No. 1 at 4;
see also Doc. No. 2 at 1-2. However, this claim must
fail for the simple reason that Davis was not convicted of an
offense under 18 U.S.C. § 924(c). Although he was
charged with a § 924(c) offense in Count 2 of his
indictment-for using or carrying a firearm during a drug
trafficking crime-that count was dismissed after he pleaded
guilty to other counts. See Doc. No. 16-1 at 3.
Consequently, Davis's claim is factually baseless.
count for which Davis was convicted, Count 3, was for
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g). However, Davis was not sentenced as
an armed career criminal under the ACCA, and his sentence for
his § 922(g) conviction was not enhanced based on any of
his prior convictions. Because the ACCA played no part in
Davis's conviction and sentence, the main holding of
Johnson, which voided the ACCA's residual
clause, does not apply to Davis.
Davis sentenced as a career offender under the
career-offender provision of the Sentencing Guidelines.
See U.S.S.G. § 4B1.1(a). Davis's sentence
was wholly the product of a plea agreement by which the
government recommended a sentence of 90 months, which in
connection with the district court's grant of a downward
variance, resulted in a sentence substantially below
Davis's calculated Sentencing Guidelines range. Even if
Davis's sentence was influenced by some guideline
enhancement (which it was not), the decision in
Johnson would not have been implicated. In
Beckles v. United States, 137 S.Ct. 886 (2017), the
Supreme Court held that Johnson has no applicability
to the Sentencing Guidelines. See 137 S.Ct. at
Davis's sentence was not based on the application of any
residual clause-type provision regarding a “violent
felony” or a “crime of violence”-whether in
the ACCA, in the Sentencing Guidelines, or in 18 U.S.C.
§ 924(c), which, as ...