PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 15-6099


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

LAMAR RICHARD LEE,

                   Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Rebecca Beach Smith, Chief District Judge. (4:12-cr-00105-RBS-
LRL-1; 4:14-cv-00148-RBS)


Argued: September 21, 2016                                   Decided: April 25, 2017


Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.


Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Niemeyer and Judge Harris joined.


ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
Sean E. Andrussier, Daniel Driscoll, Student, Will Fox, Student, Ryan Weiss, Student,
DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant.
Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
GREGORY, Chief Judge:

       This Court issued a certificate of appealability (“COA”) in this matter to permit

Appellant Lamar Richard Lee, a federal prisoner, to challenge the district court’s denial

of his motion under 28 U.S.C. § 2255. After holding this case in abeyance pending the

Supreme Court’s decision in Beckles v. United States, 

(2017), we now

affirm the district court’s judgment.

       On March 18, 2013, Lee pled guilty to three counts of possession with intent to

distribute cocaine, cocaine base, and heroin in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C), and one count of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2).      Prior to sentencing, the U.S. Probation Office

prepared a presentence report (“PSR”) finding that, because of Lee’s 2008 Virginia

convictions for unlawful wounding and for possession of cocaine with intent to distribute,

he qualified for a sentence enhancement as a “career offender” under U.S. Sentencing

Guidelines § 4B1.1. Lee’s trial counsel made no objections to the sentencing factors in

the PSR. On June 14, 2013, the district court sentenced Lee as a career offender and

imposed an enhanced sentence of 188 months’ imprisonment.

       Lee appealed his sentence, in part to challenge the reasonableness of his sentence.

This Court affirmed the sentence, concluding that “the district court accurately calculated

the applicable Guidelines range and did not commit procedural error when sentencing

Lee.” United States v. Lee, 559 F. App’x 251, 252 (4th Cir. 2014). Lee later filed a

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Lee asserted

that his trial counsel was constitutionally ineffective because, during the sentencing

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hearing, his counsel failed to challenge the district court’s determination of his career

offender status. Lee specifically argued that his unlawful wounding conviction did not

qualify as a “crime of violence” under § 4B1.2 of the Guidelines. The district court

denied Lee’s motion and concluded that Lee’s counsel was not ineffective because the

unlawful wounding conviction did in fact qualify as a crime of violence under the

residual clause of § 4B1.2(a)(2). 1

       On January 20, 2015, Lee timely noted this appeal, but the district court declined

to issue a COA. On February 24, 2015, Lee filed a motion for a COA, asserting for the

first time that the residual clause in § 4B1.2(a)(2) may be unconstitutionally vague. On

June 26, 2015, the Supreme Court in Johnson v. United States, 

(2015),

held that the nearly identical residual clause in the violent felony definition of the Armed

Career Criminal Act (“ACCA”) was unconstitutionally vague. 2 On August 31, 2015, this

Court granted Lee’s motion and issued a COA regarding whether Johnson rendered the

district court’s conclusion debatable. 3 ECF No. 21.



       1
         At the time Lee was sentenced, § 4B1.2(a) of the Guidelines, in relevant part,
defined a crime of violence as an offense that “is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S. Sentencing Guidelines Manual
§ 4B1.2(a)(2) (U.S. Sentencing Comm’n 2013) (emphasis added). The italicized
language is referred to as the residual clause.
       2
         The residual clause in the ACCA defines a violent felony as a crime that
“otherwise involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B).
       3
         The COA also stated that “[i]mplicit in this issue is whether Johnson applies
retroactively to cases on collateral review.” Several months after this Court issued the
(Continued)
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       As a threshold matter, Lee argues that this case should not be limited to his

ineffective assistance of counsel claim, maintaining that “[b]ecause Johnson was decided

while this case was pending, this Court has the authority to review a freestanding claim

for relief based on that intervening change in law.” Reply Br. at 1. The government

contends that Lee forfeited any vagueness challenge to the residual clause in

§ 4B1.2(a)(2) by failing to include such a claim in his § 2255 motion. We need not

resolve this procedural issue, however, for it is now clear that even if Lee could

overcome the government’s assertion of forfeiture, his claim challenging a provision of

the Guidelines as unconstitutionally vague would nonetheless fail on the merits.

       Recently, the Supreme Court concluded that the Guidelines are not subject to a

vagueness challenge under the Due Process Clause. 

. The

Court reasoned that unlike the ACCA’s residual clause, which fixed the permissible

range of sentences for certain defendants, the Guidelines “merely guide the exercise of a

court’s discretion in choosing an appropriate sentence within the statutory range.” 

observed that before the Guidelines were created, its cases never suggested

that a statute conferring discretion to a district court to select a sentence within a statutory

range could be successfully challenged as vague, even when that discretion was

unfettered. 

The Court surmised that “[i]f a system of unfettered discretion

is not unconstitutionally vague, then it is difficult to see how the present system of guided




COA, the Supreme Court in Welch v. United States, 

, 1268 (2016),
explicitly held that Johnson has a retroactive effect in cases on collateral review.

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discretion could be.” 

Further, the Guidelines “do not implicate the twin

concerns underlying vagueness doctrine—providing notice and preventing arbitrary

enforcement.” 

the Guidelines are not amenable to a vagueness challenge.

Johnson’s vagueness holding does not apply to the residual clause in

§ 4B1.2(a)(2). See 

Accordingly, the Court concludes that the district court did

not err by determining that Lee’s unlawful wounding conviction qualified as a crime of

violence under the residual clause.

       For the foregoing reasons, the district court’s judgment is

                                                                             AFFIRMED.




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