Opinion
Case No. CV616-091 Case No. CR610-006
08-30-2016
DAMON ANTRON JOHNSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Having been sentenced as a career offender to 162 months for possession with intent to distribute (PWID) cocaine in violation of 21 U.S.C. § 841, doc. 86, Damon Antron Johnson moves under 28 U.S.C. § 2255 for resentencing absent the U.S.S.G. § 4B1.1 enhancement used to calculate his recommended Guidelines range sentence. Doc. 96. As the Government correctly points out, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), currently bars his claim. Every other circuit disagrees with or accepts governmental concessions contrary to Matchett, and the Supreme Court agreed to resolve that circuit split in Beckles v. United States, ___ U.S. ___, 136 S.Ct. 2510 (2016) (granting certiorari to decide whether Johnson applies to § 4B1.1 enhancements).
All citations are to the criminal docket in CR405-334 unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
Like many other federal prisoners of late, he argues that under Johnson v. United States, ___U.S.___, 135 S. Ct. 2551 (2015), § 4B1.1 is unconstitutionally vague and thus that he no longer qualifies as a career offender. Doc. 96 at 4 ("Petitioner's career offender enhancement can no longer stand in light of Johnson.").
The Armed Career Criminal Actthe statute Johnson addressedprovides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and (2) have "three prior convictions . . . for a violent felony or a serious drug offense, or both." It defines "violent felony" as, among other things, a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at § 924(e)(2)(B). Johnson found that "residual" clause so vague that it violates due process. See 135 S. Ct. at 2557.
See, e.g., United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016); United States v. Welch, 641 F. App'x 37, 43 (2d Cir. 2016); United States v. Townsend, 638 F. App'x 172, 177-78 (3d Cir. 2015); United States v. Frazier, 621 F. App'x 166 (4th Cir. 2015); United States v. Pawlak, 822 F.3d. 902, 911 (6th Cir. 2016); Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015); United States v. Taylor, 803 F.3d 931 (8th Cir. 2015); United States v. Benavides, 617 F. App'x 790 (9th Cir. 2015); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). Three Eleventh Circuit judges question Matchett's vitality. In re Clayton, ___ F. 3d ___, 2016 WL 3878156 at *1-17 (11th Cir. July 18, 2016) (concurrences).
Normally, the Court would consider whether to stay this case until Beckles is decided, but the Government correctly cites Johnson's two prior PWID convictions, Presentence Investigation Report (PSR) ¶¶ 33, 35, which both qualify as "controlled substance offenses" under the career-offender Guideline. They are separately defined in a way that includes none of the problematic residual-type language at issue in Johnson. See U.S.S.G. § 4B1.2(b) ("[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense."). Those two "controlled substance offenses" alone were sufficient to qualify Johnson as a career offender.
Unlike the Armed Career Criminal Act ("ACCA") that Johnson addressed, and which requires three predicates, § 4B1.1 asks only for two. See U.S.S.G. § 4Bl.l(a)(3); McPherson v. United States, 2016 WL 3636649 at * 2 n. 4 (S.D. Ga. June 29, 2016). --------
Accordingly, Damon Antron Johnson's § 2255 motion should be DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added). Any motion for leave to appeal in forma pauperis therefore is moot. Finally, the Probation Department is DIRECTED to file the PSR under seal.
SO REPORTED AND RECOMMENDED, this 30th day of August, 2016.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA