United States District Court, E.D. Missouri, Southeastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's motion to
Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to
28 U.S.C. § 2255, wherein he asserts Johnson v.
United States, 135 S.Ct. 2551 (2015) is applicable. The
United States of America has responded to the motion. For the
reasons set forth below the Motion will be denied.
January 9, 2007, Petitioner entered a plea of guilty to the
offense of Possession Of Methamphetamine With the Intent to
Distribute in violation of 21 U.S.C. § 841(a)(1). A
Presentence Investigation Report was prepared and provided to
the court. Petitioner appeared on April 10, 2007 for
sentencing. Petitioner was found to be a career offender and
was sentenced to a within-Guidelines term of imprisonment of
Presentence Investigation Report found Petitioner to be a
career offender under U.S.S.G. § 4B1.1(a), resulting in
a Total Offense Level of 29. The convictions that were
classified as career offender predicates were: (1) a crime of
violence conviction for First Degree Burglary; (2) a
controlled substance offense of Manufacture of a Controlled
Substance. The Criminal History Category was VI since he was
classified as a career offender and the resulting sentencing
range was 151 to 188 months.
claims that he is entitled to relief under the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). His suggestion is that
Johnson should be applied retroactively to his case
to reduce his sentence.
In Johnson v. United States, 135 S.Ct. 2551 (2015),
the Supreme Court held that 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. The
Supreme Court has since determined that Johnson
announced a new substantive rule of constitutional law that
applies retroactively on collateral review in cases involving
ACCA-enhanced sentences. United States v. Welch, 136
S.Ct. 1257 (2016). However, the Court's holding in
Welch that Johnson applies retroactively in
ACCA cases on collateral review does not govern the separate
question of whether Johnson applies retroactively to
claims based on the Sentencing Guidelines. Unlike the ACCA, a
Guidelines classification does not “prescribe
punishment.” Welch, 136 S.Ct. at 1268.
Career Offender is determined as follows:
(a) A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).
“crime of violence” is defined in the Guidelines
(a) the term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for ...