Opinion
No. 4:15CV1791 JAR
03-14-2016
PHILANDA JAMISON, Movant, v. UNITED STATES OF AMERICA, Respondent
MEMORANDUM AND ORDER
This matter is before the Court on Philanda Jamison's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Movant argues that he is entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015). The motion will be denied and dismissed.
Movant pled guilty to distribution of heroin, 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). United States v. Harrison, No. 4:11CRJAR (E.D. Mo.). Defendant was originally sentenced to 151 months' imprisonment. However, pursuant to Fed.R.Crim.P. 35, movant's sentence was reduced to 115 months' imprisonment, and 3 years' supervised release. Movant's sentence was enhanced under U.S.S.G. § 4B1.1 because he qualified as a Career Offender.
Movant qualified for a Chapter Four Enhancement under the 2011 U.S.S.G. because he was at least 18 years old at the time of the conviction; the conviction was for a felony that is either a crime of violence or a controlled substance offense; and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1. Movant's prior convictions included Assault in the Second Degree, Circuit Court, St. Louis County, Missouri, under Case No. 21-98CR001333 and a conviction for Possession with Intent to Distribute More than 5 Grams of Crack Cocaine, Case No. 4:05CR509 CDP (E.D.Mo.).
In his motion to vacate, movant argues that he did not qualify as a Career Offender because his Missouri conviction for second degree assault in 1998 was not a "crime of violence" under the ruling in Johnson.
In Johnson, the Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (ACCA) violates the Constitution's guarantee of due process. 135 S.Ct. at 2563. Johnson did not address sentence enhancements under Chapter 4 of the United States Sentencing Guidelines.
The Johnson decision does not apply to enhancements under the Guidelines. See United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990) ("Because there is no constitutional right to sentencing guidelines—or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines—the limitations the Guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague."). Although the Court is aware that the Court of Appeals for the Eighth Circuit has stated that "[the] reasoning in Wivell . . . is doubtful under Johnson," United States v. Taylor, 803 F.3d 931, 933 (8th Cir. 2015), the Court is bound by controlling Circuit precedent. See United States v. Wivell, 893 F.2d 156 (8th Cir. 1990) (holding that the guidelines "are simply not susceptible to a vagueness attack").
Even if Johnson were to apply to enhancements under the Guidelines, movant would not be entitled to relief. The crime of second-degree assault qualifies as a crime of violence in this instance. See United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016) (finding that knowingly attempting to cause violence to another by use of a dangerous instrument). In movant's case, he attempted to run over a police officer with his car, causing the officer to have to jump back to avoid being hit by the vehicle.
The Court has reviewed the state court records and the Presentence Report and found that under the modified categorical approach movant's acts qualified as a crime of violence. --------
For these reasons, movant is not entitled to federal habeas relief. Furthermore, movant has failed to make a substantial showing of the denial of a constitutional right, which requires a demonstration "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a Certificate of Appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that Robert Wolfrum's motion to withdraw as counsel is GRANTED.
IT IS FURTHER ORDERED that movant's motion for relief under 28 U.S.C. § 2255 is DENIED AND DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 14th day of March, 2016.
/s/_________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE