U.S. v. Foster, 4:04-cr-01039-TLW-1. (2016)
Court: District Court, D. South Carolina
Number: infdco20160519f52
Visitors: 12
Filed: May 18, 2016
Latest Update: May 18, 2016
Summary: Order TERRY L. WOOTEN , Chief District Judge . This matter is before the Court on Defendant's motion to appoint counsel to his case in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He pled guilty to a drug charge and was sentenced as a guideline career offender to 204 months imprisonment. His career offender predicate convictions were for failure to stop for blue light, assault with intent to kill (AWIK), and distribution of powder cocaine. PS
Summary: Order TERRY L. WOOTEN , Chief District Judge . This matter is before the Court on Defendant's motion to appoint counsel to his case in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He pled guilty to a drug charge and was sentenced as a guideline career offender to 204 months imprisonment. His career offender predicate convictions were for failure to stop for blue light, assault with intent to kill (AWIK), and distribution of powder cocaine. PSR..
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Order
TERRY L. WOOTEN, Chief District Judge.
This matter is before the Court on Defendant's motion to appoint counsel to his case in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He pled guilty to a drug charge and was sentenced as a guideline career offender to 204 months imprisonment. His career offender predicate convictions were for failure to stop for blue light, assault with intent to kill (AWIK), and distribution of powder cocaine. PSR ¶¶ 23, 35, 39, 42. Even without the failure to stop conviction, the record reflects that he would remain a career offender under the guidelines in light of his predicate convictions for AWIK and cocaine distribution.
Even assuming that Johnson applies to the guidelines,1 Defendant would not be entitled to relief, as the Fourth Circuit has concluded that an erroneous application of the sentencing guidelines, including a career offender designation, is not cognizable on collateral review pursuant to § 2255. See United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015). Thus, the Court concludes that no basis exists to appoint counsel in this case. Accordingly, his motion to appoint counsel, ECF No. 90, is DENIED.
IT IS SO ORDERED.
FootNotes
1. The Court notes that this issue has not been decided by the Fourth Circuit, and at least one Court of Appeals has concluded that Johnson does not apply to the guidelines. See United States v. Matchett, 802 F.3d 1185, 1194-96 (11th Cir. 2015) (concluding that Johnson does not apply to the guidelines because they do not prohibit conduct or fix punishments).
Source: Leagle
