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