ORDER DENYING DEFENDANT'S SECTION 2255 PETITION Re: Dkt No. 331

MAXINE M. CHESNEY, District Judge.

Before the Court is defendant Gary Adams' "Amended Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255," filed September 20, 2016. The government has filed opposition, to which defendant has replied. On January 6, 2017, the Court granted the government's request to stay proceedings on the instant petition pending the Supreme Court's decision in Beckles v. United States, and set a briefing schedule by which the government would file a supplemental opposition to defendant's petition no later than 30 days after issuance of the Supreme Court's decision, and defendant would file a supplemental reply 21 days thereafter. Although the Supreme Court issued its decision in Beckles on March 6, 2017, see Beckles v. United States, 137 S.Ct. 886 (2017), no supplemental opposition has been filed by the government.1 Nonetheless, having read and considered the papers filed to date in support of and in opposition to the petition, the Court deems the matter suitable for decision thereon, and hereby rules as follows.

By superseding indictment filed January 30, 2003, defendant was charged with two counts of possession with intent to distribute cocaine base and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).2 A jury found defendant guilty of all charges and, on July 19, 2006, the Court imposed a sentence of 262 months.

Pursuant to 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." See 28 U.S.C. § 2255(a). Here, defendant asserts, the presentence report upon which his sentence is based erroneously "concluded that `the defendant qualifies as a career offender [under the United States Sentencing Guidelines ("U.S.S.G.")], in that the instant offense is a felony controlled substance offence, and he has two previous felony convictions for crimes of violence . . . .'" (See Def.'s Mem. at 16:15-19 (quoting presentence report).)

As provided in the U.S.S.G:

See U.S.S.G. § 4B1.1(a). Defendant challenges as unconstitutional the "residual clause" (see Def.'s Mem. at 2:19) set forth below in italics, found in the following guideline defining the term "crime of violence":

See U.S.S.G. § 4B1.2(a) (emphasis added).3 The term "crime of violence," in turn, is, as noted above, found in the guideline defining "career offender." See U.S.S.G. § 4B1.1(a).

Defendant contends his sentence was "based upon a . . . finding under [the] residual clause" (see Def.'s Mem. at 2:18-19), and that said clause is unconstitutional given the Supreme Court's reasoning in Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court found unconstitutional the "residual clause" contained in a section of the Armed Career Criminal Act defining the term "violent felony." See 18 U.S.C. § 924(e)(2)(B). According to defendant, "[t]he Johnson holding should apply equally here, because the operative residual clause in U.S.S.G. § 4B1.2 is identical to the residual clause in the Armed Career Criminal Act." (See Def.'s Mem. at 14:17-20.) Additionally, defendant, again citing Johnson, argues that, although robbery is listed as an example of a "crime of violence" in the commentary to U.S.S.G. § 4B1.2(a), the offenses enumerated in the commentary are tied to the residual clause and thus no longer "crimes of violence" after Johnson. (See Def.'s Reply at 11:1-12:20.)

Subsequent to the filing of defendant's petition, however, the Supreme Court ruled that "the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is not void for vagueness." See Beckles, 137 S. Ct. at 895.4 In light of Beckles, defendant's argument that his "sentence is now illegal because it was imposed pursuant to a Guidelines provision that is now unconstitutionally vague" (see Def.'s Mem., at 19:18-20) is unavailing. Under such circumstances, defendant is not entitled to relief under § 2255.5

Accordingly, defendant's motion is hereby DENIED.

IT IS SO ORDERED.