United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Eric Earnest's
pro se Motion to Correct Sentence pursuant to 28
U.S.C. § 2255 [ECF No. 1].
October 26, 2007, Petitioner Eric Earnest pleaded guilty to
conspiracy to distribute cocaine and marijuana (Count I),
conspiracy to launder money (Count II) and criminal
forfeiture (Count IX) in Case No. 4:07CR00184 ERW. Pursuant
to Federal Rule of Criminal Procedure 11(c)(1)(C), the
parties agreed to a sentence of 151 months.
Presentence Report (“PSR”) was prepared.
According to the PSR, Earnest's base offense level was 34
under § 2D1.1(c)(3) of the 2007 edition of the United
States Sentencing Guidelines (“U.S.S.G.”). Two
levels were added pursuant to U.S.S.G. § 3B1.1(c)
because Earnest was a supervisor; and three-levels were
subtracted for acceptance of responsibility. The total
offense level would have been 33; however, Earnest was
determined to be a career offender pursuant to U.S.S.G.
§ 4B1.1 as a result of his prior convictions for: (1)
Arkansas burglary; and (2) Robbery of a United States Post
Office. Accordingly, under Chapter 4, Earnest's offense
level became 37. After the three-level reduction for
acceptance of responsibility, his total offense level was 34.
Earnest's sentencing on January 8, 2008, the Court
adopted the factual assertions set forth in the PSR. The
Court stated it was going to calculate a sentencing range
under the 2007 United States Sentencing Guidelines Manual,
and consider that range along with other factors. The Court
acknowledged Earnest was a career offender under U.S.S.G.
§ 4B1.1 based upon his prior felony convictions and
found his total offense level to be 34 and the criminal
history category to be VI, resulting in a sentencing
guideline range of 267-327 months. The Court then sentenced
Earnest to 151 months in accordance with the plea agreement.
Earnest did not appeal.
the United States Supreme Court decided Johnson v. United
States, 135 S.Ct. 2551 (2015), on June 23, 2016, Earnest
filed the following petition to correct his sentence.
This letter is in regards to me being sentenced in pursuant
to 4Bl.l of the sentencing guidelines as a career offender.
The Supreme Court ruled in the U.S. vs. Johnson, that the
residual clause was unconstitutional. The court made this
ruling retroactive in the U.S vs. Welch, because of this I
believe at least one of my convictions used to career me is
no longer considered a crime of violence. I respectfully
request that the court resentence me based on the sentencing
guidelines without career offender designation. I would also
request appointed counsel to assist me and if necessary
construe this as a 2255.
letter, Earnest claims he is no longer a career offender
under §4B1.1 of the United States Sentencing Guidelines
in light of Johnson and seeks to be resentenced
without that designation. In response to the filing, the
Court ordered the Federal Public Defender to review the
filing and determine whether it would be pursuing
Earnest's arguments under Johnson. The Federal
Public Defender's Office subsequently filed a notice with
the Court stating it had reviewed the case and would not
pursue any Johnson arguments on Earnest's
behalf. The Court entered an order construing Earnest's
filing as a § 2255 motion. The Government filed its
Response to Earnest's motion.
challenges his sentence pursuant to Johnson v. United
States. In Johnson, the Supreme Court held the
residual clause in the definition of a “violent
felony” in the Armed Career Criminal Act of 1984, 18
U.S.C. § 924(e)(2)(B) (“ACCA”), is
unconstitutionally vague. Johnson, 135 S.Ct. at
2563. Subsequently, in United States v. Welch, 136
S.Ct. 1257, 1265 (2016), the Supreme Court ruled
Johnson was a substantive new rule, retroactive on
collateral review. Therefore, defendants who were determined
to be armed career criminals under the residual clause of the
ACCA may seek collateral review of their sentences within one
year of the Supreme Court's Johnson decision. In
this case, the ACCA was not at issue; instead, Earnest's
career offender status under the residual clause of the
Guidelines is implicated. Neither Johnson nor
Welch explicitly addressed the issue of the
Earnest seeks to extend Johnson and Welch
to the residual clause of the career offender
provision in the sentencing guidelines, his argument
was recently foreclosed by the Supreme Court's decision
in Beckles v. United States, ___ U.S. ___, No.
15-8544, 2017 WL 855781 (Mar. 6, 2017). In Beckles,
the Supreme Court addressed whether the residual clause of
§ 4B1.2(a) is, analogous to the residual clause in the
ACCA, subject to a vagueness challenge under the Due Process
clause. The Supreme Court concluded the U.S. Sentencing
Guidelines are not subject to a vagueness challenge under the
Due Process Clause. Id. at *5-6. More specifically,
the Court held Johnson's vagueness holding does
not apply to the career-offender provisions of the U.S.
Sentencing Guidelines as urged by Earnest. See Id.
§ 2255 motion rests upon the contention that the §
4B1.2(a)(2) residual clause is void for vagueness. In light
of Beckles, his argument can no longer be sustained.
Accordingly, Earnest's motion under 28 U.S.C. § 2255
will be denied.
IS HEREBY ORDERED Petitioner Eric Earnest's
Motion to Correct Sentence under 28 U.S.C. ...