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Pettigrew v. United States

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

June 30, 2017

RODNEY PETTIGREW, 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 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.

         Facts and Background

         On 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.

         Petitioner 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.

         The 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 months.

         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). 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, 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).

         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 either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior ...

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