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Wiseman v. United States

United States District Court, E.D. Missouri, Southeastern Division

April 10, 2017

FLOYD GENE WISEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This 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 in opposition. Petitioner filed PETITIONER'S OPENING BRIEF AND MEMORANDUM [Doc. #14] on January 3, 2017. For the reasons set forth below the Motion will be denied.

         Facts and Background

         On April 14, 2009, Petitioner entered pleas of guilty to one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and one count of Possession With Intent to Distribute Five Grams or More of Cocaine Base in violation of 21 U.S.C. § 841(a)(1). A Presentence Investigation Report was prepared and provided to the court. Petitioner appeared for sentencing on October 19, 2009. Petitioner was found to be a career offender and was sentenced to a within-Guidelines term of imprisonment of 188 months on the controlled substance charge and 120 months on the firearms charge. The sentences were ordered to be served concurrently for an aggregate sentence of 188 months.

         The Presentence Investigation Report found Petitioner to be a career offender, as to the drug charge, under U.S.S.G. § 4B1.1(a), resulting in a Total Offense Level of 31. He was not found to be an Armed Career Criminal for the firearm charge. The convictions that were classified as career offender predicates were: (1) a controlled substance offense of Distribution of a Controlled Substance, (P.S.R. ¶ 35); (2) a crime of violence of Second Degree Assault (P.S.R. ¶ 42). The Criminal History Category was VI since he was classified as a career offender and the resulting sentencing range was 188 to 235 months.

         On October 22, 2009, Petitioner filed a timely Notice of Appeal. That appeal was dismissed by the Eighth Circuit Court of Appeals based on the appeal waiver contained in his plea agreement. This is his first petition pursuant to 28 U.S.C. § 2255.

         Petitioner's Claim

         Petitioner claims that he is entitled to relief under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He claims that his prior conviction for Missouri Distribution of a Controlled Substance was improperly classified as a “serious drug offense.” His suggestion is that Johnson should be applied retroactively to his case to reduce his sentence.

         Discussion

         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.

         A 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).

         A controlled substance offense is defined by the Sentencing ...


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