United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
matter is before the court on Petitioner Deshun Derfetta
Reaves' Motion to Vacate, Set Aside, or Correct Sentence,
filed pursuant to 28 U.S.C. § 2255. (Civil Doc. # 1; Cr.
Doc. # 30). For the reasons explained below, the
motion is due to be denied.
2010, Reaves pleaded guilty to the following crimes: (1) two
counts of possession with the intent to distribute marijuana
(counts 1 and 4); (2) two counts of being a felon in
possession of a firearm (counts 3 and 6); and (3) two counts
of carrying a firearm during and in relation to a drug
trafficking crime (counts 2 and 5). (Cr. Docs. # 29, 31). He
was sentenced to 384 months of imprisonment for these crimes,
broken down as follows: 24 months as to counts 1, 3, 4, and 6
(all to be served concurrently); a consecutive 60 months as
to count 2; and a consecutive 300 months as to count 5. (Cr.
Doc. # 29 at 2).
2016, Reaves filed a § 2255 motion. (Civil Doc. # 1; Cr.
Doc. # 30). He seeks to have his sentence reduced on the
basis of the Supreme Court's decisions in Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States, 136 S.Ct. 1257 (2016). (Id. at
8-10). For the reasons explained below, Johnson and
Welch provide no basis to reduce Reaves'
sentence, and his § 2255 motion is therefore due to be
law forbids certain people, including convicted felons, from
possessing firearms. See 18 U.S.C. § 922(g).
Felons who violate this law generally may be punished by up
to 10 years' imprisonment. Id. § 924(a)(2).
“But if the violator has three or more earlier
convictions for a ‘serious drug offense' or a
‘violent felony,' the Armed Career Criminal Act
increases his prison term to a minimum of 15 years and a
maximum of life.” Johnson, 135 S.Ct. at 2555.
language known as the Act's “residual clause”
defines the term “violent felony” to include any
felony that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
Id. at 2555-56 (quoting 18 U.S.C. §
924(e)(2)(B)) (emphasis omitted). In Johnson, the
Supreme Court held that this residual clause is
unconstitutionally vague. 135 S.Ct. at 2555-57. For that
reason, increasing a defendant's sentence under the
residual clause denies due process of law. Id. at
2557. Less than a year later, in Welch v. United
States, the Court held that its decision in
Johnson applied retroactively on collateral review.
136 S.Ct. at 1265.
Reaves bases his § 2255 motion entirely on
Johnson and Welch, those decisions have no
application to his case. Reaves did plead guilty to two
counts of being a felon in possession of a firearm, but he
was not sentenced under the Armed Career Criminal Act
(“ACCA”) for those crimes. Rather than receiving
a fifteen-year mandatory minimum sentence under ACCA, Reaves
received only a two-year sentence for the felon-in-possession
counts (to be served concurrently). (Cr. Doc. # 29 at 1-2).
Thus, the sentence he received for his felon-in-possession
counts cannot have transgressed Johnson.
also argues that Johnson renders unconstitutional
the sentence he received for two counts of carrying a firearm
during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A). That statute
imposes an enhanced sentence upon “any person who,
during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm . . .
.” Id. § 924(c)(1)(A). Reaves argues the
term “crime of violence” in § 924(c)(1)(A)
is unconstitutionally vague under Johnson. (Civil
Doc. # 1 at 8-10). The term “crime of violence”
in § 924(c) is defined (using language similar to
ACCA's residual clause) to include any felony “that
by its nature, involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense.” 18 U.S.C.
§ 924(c)(3)(B). This residual-clause definition of
“crime of violence, ” Reaves contends, shares the
same constitutional defect as the residual-clause definition
of “violent felony” that was held
unconstitutional in Johnson.
Supreme Court has agreed to resolve this term whether
Johnson and the Court's more recent decision in
Sessions v. Dimaya, 138 S.Ct. 1204 (2018) render the
residual clause of § 924(c)'s definition of
“crime of violence” unconstitutionally vague.
See United States v. Davis, 139 S.Ct. 782 (2019).
But, even assuming that § 924(c)'s definition of
“crime of violence” is unconstitutionally vague,
that would not entitle Reaves to any relief. That is because
Reaves was not convicted and sentenced for carrying a firearm
during and in relation to a “crime of violence.”
Instead, he pleaded guilty to and was sentenced for carrying
a firearm during and in relation to a “drug trafficking
crime.” (Cr. Docs. # 16 at 2, 4; 29 at 1; 31 at 9-10,
19-27). Reaves does not argue that Johnson or
Dimaya renders the term “drug trafficking
crime” unconstitutionally vague, nor could he credibly
do so. Accordingly, Johnson provides no basis to
reduce Reaves' sentence.
Johnson provides no basis to reduce Reaves'
sentence, his § 2255 motion fails on the merits.
Additionally, to the extent his § 2255 motion is based
on grounds other than a “right that has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review, ” the motion
is untimely. 28 U.S.C. § 2255(f)(3). That is so because,
absent a newly recognized and retroactively applicable right
(or certain other circumstances not present here), §
2255's one-year limitation period runs from the date on
which the judgment of conviction becomes final. Id.
§ 2255(f)(1). Reaves' judgment of conviction became
final in 2010 (Cr. Doc. # 29), thereby placing this §
2255 motion (filed in 2016) well outside the one-year
reasons explained above, Reaves is not entitled to
postconviction relief on his § 2255 motion. The motion
is accordingly due to be denied. A separate order ...