United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's amended 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.
August 16, 2011, Petitioner entered a plea of guilty to the
offense of Felon in Possession of a Firearm in violation of
18 U.S.C. § 922(g)(1). A Presentence Investigation
Report was prepared and provided to the court.
appeared for sentencing on February 3, 2012 for sentencing.
Petitioner was found to be an Armed Career Criminal under 18
U.S. C.§ 924(e). Petitioner was sentenced to a
within-Guidelines term of imprisonment of 180 months.
Presentence Investigation Report found Petitioner to be an
Armed Career Criminal under U.S.S.G. § 4B1.4(b)(3)(B),
resulting in a Total Offense Level of 33. Allowing for a
three-level reduction for acceptance of responsibility, the
PSR calculated Petitioner's Total Offense Level to be 30.
The Criminal History Category was IV. As an Armed Career
Criminal this resulted in a sentencing range was 135 to 168
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.
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, as it
violates the Due Process Clause because the residual clause
is impermissibly vague on its face. Johnson, 135
S.Ct. at 2556. 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).
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 either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior ...