REPORT AND RECOMMENDATION
CHARLES J. KAHN, Jr., Magistrate Judge.
This matter is before the court upon Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 91). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that "[i]f it plainly appears from the face of the motion and any attached exhibits and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." After a review of the record, the undersigned recommends that the motion be summarily dismissed.
BACKGROUND AND ANALYSIS
Defendant pleaded guilty to both counts of a superseding indictment in which he was charged with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, and possession with intent to distribute 50 grams or more of cocaine base on a date certain. (See ECF Nos. 59, 65, 66). The court sentenced him to a term of 296 months imprisonment in June of 2001, and Defendant did not appeal. (ECF No. 72). Defendant unsuccessfully moved for two sentence reductions pursuant to 18 U.S.C. § 3582 (ECF Nos. 76-79), and he now moves for relief pursuant to 28 U.S.C. § 2255. In the instant motion, Defendant claims that he is entitled to relief pursuant to the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), which invalidated the so-called residual clause of the Armed Career Criminal Act, and Welch v. United States, 136 S.Ct. 1257, 1268 (2016), which held that Johnson applies retroactively to cases on collateral review. Although Johnson addressed only the residual clause of the ACCA, Defendant argues that the case also applies to sentences imposed under the parallel residual clause contained in § 4B1.1 of the U.S. Sentencing Guidelines. Additionally, he argues that trial and appellate counsel (although there was no appeal) were constitutionally ineffective for failing to raise this issue, and that the district court applied an incorrect guideline range based on the seriousness of the offense and the extent of his criminal history.
Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions under this section. Relevant to this case, the one-year period of time runs from the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. To the extent Defendant's motion is based on the Johnson decision, it is timely filed. Substantively, however, Defendant's attempt to benefit from Johnson is unavailing, as Johnson is inapplicable to the specific facts of this case.
Defendant bases his request for relief on the fact that the definition of a "crime of violence" contained in U.S.S.G. § 4B1.2(a)(2) tracks the language of the residual clause of the ACCA. He concludes that if the residual clause contained in the ACCA has been found unconstitutional, the same must be true of the residual clause in the Sentencing Guidelines. The Eleventh Circuit has rejected this position, holding that the Supreme Court's decision in Johnson does not apply to challenges to sentence enhancements based on the United States Sentencing Guidelines, and that individual sentencing guidelines cannot be unconstitutionally vague. United States v. Matchett, 802 F.3d 1185, 1194-96 (11th Cir. 2015); see also Beckles v. United States, 616 F. App'x. 415, 416 (11th Cir. 2015) ("Johnson says and decided nothing about career-offender enhancements under the Sentencing Guidelines."); but see In re Robinson, Case 16-11304-D; 2016 WL 1583616, at *2, n.2 (11th Cir. Apr. 19, 2016) (noting that all ten of the other courts of appeal have either held or assumed that Matchett was incorrect and have applied Johnson to guidelines adjustments). Because this court is bound by Eleventh Circuit precedent, a challenge to the application of the § 4B1.1 career offender enhancement based on the use of the "residual clause" of the guidelines § 4B1.2 must fail.
Even assuming for sake of argument that Matchett were vacated or overturned, Defendant still would not be entitled to relief because the residual clause of the career offender guideline had no bearing on the application of the enhancement in his case. Application of the Chapter Four enhancement requires "at least two prior felony convictions of either a crime of violence or a controlled substance offense." USSB § 4B1.1(a). The PSR reflects that Defendant was considered to be a career offender due to the following prior convictions: Aggravated Battery with a Firearm; two counts of Armed Robbery; Robbery with a Firearm and Aggravated Assault; and Possession of Cocaine with Intent to Distribute. (ECF No. 92, PSR ¶ 46). Despite all of these convictions, the Chapter Four Enhancement Offense Level was not used to calculate Defendant's Offense Level because the offense level that would have applied under § 4B1.1 was not greater than the otherwise applicable offense level as calculated pursuant to § 2D1.1. (Id.) Thus, regardless of whether the listed prior offenses qualified as "crimes of violence" or "controlled substance offenses," application of the conclusion in Johnson to the guidelines would have had no impact on Defendant's guidelines calculation and sentence.
The court also notes that the Sentencing Commission has adopted an amendment to the definition of "crime of violence" contained in U.S.S.G. § 4B1.2(a)(2), at least partially in response to the disagreement among the Circuits with respect to the application of Johnson to the parallel provision in the Sentencing Guidelines. The proposed amendment would eliminate the residual clause and revise the list of specific enumerated offenses qualifying as crimes of violence.1 The effective date of this proposed amendment would be August 1, 2016. Even if the amendment is ultimately adopted and made retroactive, it nonetheless would not impact Defendant's sentence for the same reason set forth above.
Defendant also claims in his third ground for relief that the Supreme Court's decision in Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) entitles him to resentencing. The Court held in Molina-Martinez that a defendant sentenced under an incorrect guideline range may rely on that fact, without presenting additional evidence, to show a reasonable probability that the district court would have imposed a different sentence under the correct range. 136 S. Ct. at 1349. Defendant's suggestion in this case that he is entitled to relief presupposes an error in the district court's guidelines calculation, which Defendant has not shown. As such, no relief is warranted. In conclusion, neither Johnson and its progeny, nor the Molina-Martinez decision affords Defendant relief in this case, and his motion should be summarily denied.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.
After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Based on the foregoing, it is respectfully RECOMMENDED:
1. The motion to vacate, set aside, or correct sentence (ECF No. 91) be summarily DENIED and DISMISSED.
2. A certificate of appealability be DENIED.
