IVAN L.R. LEMELLE, Senior District Judge.
Before the Court is Defendant-movant Craig Baldwin's ("Petitioner") "Motion to Correct Sentence under 28 U.S.C. § 2255 Pursuant to Johnson." Rec. Doc. 128. The Government timely filed a response memorandum. Rec. Doc. 142. Petitioner Baldwin then filed a reply memorandum. Rec. Doc. 143. For the reasons discussed below,
On August 10, 2000, Craig Baldwin ("Petitioner") pled guilty to count two of an indictment charging him with possession with intent to distribute cocaine base and cocaine hydrochloride, in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2. Rec. Doc. 41. On October 25, 2000, Petitioner was sentenced to 262 months imprisonment. Rec. Doc. 41. Petitioner's sentencing took place when the United States Sentencing Guidelines were still mandatory.
On June 26, 2015, the United States Supreme Court held in Johnson v. United States that the "residual clause" of the Armed Career Criminal Act of 1984 ("ACCA," 18 U.S.C. § 924(e)(2)(B)(ii)), providing that a "violent felony" includes any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another," was unconstitutionally vague. 135 S.Ct. 2551, 2563 (2015). The rule in Johnson was made retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016).
The Federal Sentencing Guidelines (the "Guidelines") relied upon by the sentencing court in Petitioner's case contain an identical residual clause. The 1995 version, which were in effect when Petitioner was sentenced in 2000, provided that:
U.S.S.G. § 4B1.1 (emphasis added). In turn, "crime of violence" was defined to include:
U.S.S.G. § 4B1.2(1) (emphasis added).
Accordingly, on June 24, 2016, Petitioner filed the instant motion to correct his sentence under 28 U.S.C. § 2255. Rec. Doc. 128. On August 4, 2016, Petitioner's motion was held in abeyance pending the Supreme Court's decision in Beckles v. United States. Rec. Doc. 131. On March 6, 2017, the Supreme Court in Beckles v. U.S. held that the
Id. at 903 n.4 (emphasis added).
Petitioner was given until May 15, 2017 to file supplemental briefing regarding Beckles. Rec. Doc. 136. A memorandum was timely filed (Rec. Doc. 137); the Government filed a response memorandum on June 14, 2017 (Rec. Doc. 142) and Petitioner filed a reply memorandum on July 14, 2017 (Rec. Doc. 143).
Petitioner argues that after Johnson he is "no longer a career offender because his prior conviction for the crime of armed robbery no longer qualifies as a `crime of violence' under any definition of a crime of violence as set forth in U.S.S.G. § 4B1.2(a)." Rec. Doc. 128 at 5.
The Government responds that "[n]either the Supreme Court nor the Fifth Circuit has decided whether Johnson applies to sentences that were enhanced under the residual clause in § 4B1.2 when the Guidelines were mandatory," and therefore, his petition is untimely under 28 U.S.C. § 2255(f). Rec. Doc. 142 at 3.
The Government further argues that because he did not appeal his sentence Petitioner's claims are procedurally barred, "unless he can establish both cause for the procedural default and actual prejudice resulting from any error." Id. 142 at 5.
Finally, the Government also contends that Petitioner's argument is "meritless because his previous convictions qualify as predicate offenses for purposes of the career offender enhancement." Id. 142 at 7.
Pursuant to § 2255(f), Petitioner's motion is subject to a one-year statute of limitation that runs from the latest of:
28 U.S.C. § 2255(f) (emphasis added).
Petitioner claims that his motion was timely filed under subsection (3), "because he filed it within one year of Johnson—a ruling which established a `newly recognized' right that is `retroactively applicable to cases on collateral review.'" Rec. Doc. 137 at 18.
The Government responds that Johnson announced a new constitutional rule made retroactive by the Supreme Court in Welch, but that, "as the Fifth Circuit recognized in a pre-Beckles case, the rule announced in Johnson did not address the residual clause in § 4B1.2." Rec. Doc. 142 at 4 (citing In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016)).
In Arnick, the Fifth Circuit explained that
826 F.3d at 788.
The Government also cites to several post-Beckles cases in which district courts "concluded that . . . Johnson was limited to the ACCA" and that "pre-Booker defendants who raised claims based on Johnson's applicability to the Guidelines failed to demonstrate timeliness under § 2255(f)(3)." Id. (citing United States v. Walker, No. 09-825, 2017 WL 2225123, at *1 (D.S.C. May 22, 2017); Hodges v. United States, No. 16-1521, 2017 WL 1652967, at *3 (W.D. Wash. May 2, 2017); United States v. Russo, No. 03-413, 2017 WL 1533380, at *4 (D. Neb. Apr. 27, 2017)).
In his reply memorandum, Petitioner argues that he is relying on the rule in Johnson, not some extension thereof. Rec. Doc. 143 at 1-2. He attempts to distinguish Arnick by noting that the case concerned a
Johnson and Welch established that a prisoner may collaterally attack his or her sentence if it was imposed pursuant to the unconstitutionally vague residual clause of § 924(e)(2)(B) of the ACCA. They "did not call into question § 4B1.2(a)(2) of the Guidelines, the Guidelines in general, or any other sentencing provisions with similarly worded clauses." Russo, 2017 WL 1533380, at *3. The Fifth Circuit explicitly stated that "Johnson did not address Section 4B1.2(a)(2) of the Guidelines." Arnick, 826 F.3d at 788. Contrary to Petitioner's assertion that "Beckles confirms that Johnson applies to the mandatory Guidelines' residual clause" (Rec. Doc. 143 at 3), the Supreme Court in Beckles essentially avoided the issue by holding only that the advisory Guidelines are not subject to vagueness challenges. As recently as June 15, 2017, the Fifth Circuit confirmed that the Beckles "Court declined to extend Johnson to guidelines determinations and instead held, `Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness.'" United States v. Romero-Borego, No. 16-41438, 2017 WL 2608715, at *1 (5th Cir. June 15, 2017) (quoting Beckles, 137 S. Ct. at 897).
Petitioner essentially requests for this Court to extend Johnson. However, § 2255(f)(3) requires a right "
Petitioner's argument that Arnick is distinguishable, simply because it considered a successive petition and § 2255(h) requires that such petitions be based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," is impotent. First, the Fifth Circuit merely noted that, "even if" Johnson did implicate the Guidelines, the Supreme Court had not addressed whether or not the rule applied retroactively. 826 F.3d at 788. This statement does not change the fact that it first found that "Johnson did not address Section 4B1.2(a)(2) of the Guidelines." Id. If Johnson did not address the Guidelines, then it could not have announced a new right regarding the Guidelines. Second, in the instant case, the inquiry into whether a "right has been newly recognized by the Supreme Court" under § 2255(f)(3), and the inquiry into whether a successive petition contains "a new rule of constitutional law" under § 2255(h)(2) are not meaningfully different. See, e.g., Russo, 2017 WL 1533380, at *4 (citing Donnell v. United States, 826 F.3d 1014, 1016-17 (8th Cir. 2016); Headbird v. United States, 813 F.3d 1092, 1095 (8th Cir. 2016)).
There is no right "newly recognized by the Supreme Court" that entitles Petitioner to relief. Therefore, Petitioner cannot rely on § 2255(f)(3) to file the instant motion.
In addition to the above, Petitioner challenges this Court's classification of his prior conviction of armed robbery. He maintains that his prior armed robbery conviction is insufficient to qualify him for heightened sentencing under the Guidelines. The Guidelines prescribe the requisite definitions for whether or not Petitioner is a career offender. Per the Guidelines, a defendant is a career offender where:
U.S.S.G. 4B1.1.
As defined in U.S.S.G. § 4B1.2, the term "crime of violence" means "any offense under federal or state law, punishable by imprisonment for a term exceeding one year," that:
U.S.S.G. 4B1.2(a)(emphasis added).
Prior to his sentencing in October 2000, Petitioner had been previously convicted of two felonies. Those felonies were 1) armed robbery in violation of Louisiana law, and 2) distribution of cocaine and possession with intent to distribute cocaine; both of which were properly applied to the career offender provisions in the Guidelines.
Louisiana defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another,
In United States v. Brown, the defendant pleaded guilty to possession of a firearm as a convicted felon. 437 F.3d 450, 451 (5th Cir. 2006). Brown stipulated, as part of his plea agreement, that he had previously been convicted of two counts of simple robbery and one count of cocaine possession. Id. On appeal, Brown contested his sentence claiming that the prior robbery convictions did not qualify as violent felonies under the Armed Career Criminal Act ("ACCA"). Id. at 451-52. However, the Fifth Circuit upheld the district court's sentence finding that "the Louisiana crime of simple robbery qualifies as a violent felony under the ACCA as a matter of law." Id. at 453. "Under Louisiana law, simple robbery is a crime of violence, and a crime of violence necessarily entails the use or threatened use of force. Therefore, simple robbery entails the use or threatened use of force." Id. In support of its finding, the Fifth Circuit looked to the Fourth and Ninth Circuits. Both of those circuits have found that where a robbery definition includes the words "by violence or intimidation," it qualifies as a violent felony under the ACCA. Id. citing United States v. Presley, 52 F.3d 64 (4th Cir. 1995); United States v. Melton, 344 F.3d 1021 (9
More recently, in United States v. Richardson, the Fifth Circuit Court of Appeals found a Defendant's argument accusing the district court of error in enhancing his sentence based on his classification as a career offender under the Guidelines to be "without merit." 672 F. App'x 368 (5th Cir. 2016). The defendant in Richardson had two prior armed robbery convictions in Louisiana, as well as one conviction for simple robbery, "all three of which qualify as crime of violence under the use of force clause of § 4B1.2." Id. at 372.
Analogously, this Court is compelled to arrive at no other result than to conclude that Petitioner's prior conviction of armed robbery in violation of Louisiana law qualifies as a crime of violence within the definition of the force clause of § 4B1.2. Conclusively, Petitioner (1) was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) Petitioner Baldwin has at least two prior felony convictions of either a
The Motion to Correct Sentence (Rec. Doc. 128) is DENIED.
