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Davis v. United States

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

July 19, 2018

DEANDREW CORTEZ DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE

         In this motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (Doc. No. 1),[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 with prejudice.

         I. BACKGROUND

         On 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.

         The 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.

         On June 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.

         In 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.[2] 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.

         In 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 motions.

         II. DISCUSSION

         A. Davis's Claim Under Johnson

         Davis's 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.”[3] 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.

         One 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.

         Nor was 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 890-94.

         Finally, 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 ...


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