Laurie Smith Camp Chief United States District Judge
MEMORANDUM AND ORDER
This matter is before the Court for initial review of ECF No. 92, a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by the Defendant, Johnny L. Chatmon. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a defendant's § 2255 motion. Rule 4(b) states:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
After being found guilty of the offense of a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) the Defendant received a sentence of 68 months, to be followed by 3 years of supervised release. The Defendant appealed the conviction, and the conviction was affirmed on appeal.
In the § 2255 Motion, the Defendant asserts that the sentence should be vacated pursuant to the Supreme Court's decisions in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), and Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016).
In Johnson, the Supreme Court held the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. §924(e)(1), (the "ACCA"), to be unconstitutionally vague, and therefore void. In Welch, the Supreme Court held "that Johnson is retroactive in cases on collateral review[.]" 136 S. Ct. at 1268.
In Beckles v. United States, 580 U.S. ___, No. 15-8544, 2017 WL 855781 (March 6, 2017), the Supreme Court held that the United States Sentencing Guidelines ("USSG"), including the residual clause of USSG § 4B1.2(a), which contained language identical to the residual clause in the ACCA, are not subject to vagueness challenges under the Due Process Clause.
Before its amendment on November 1, 2016, USSG § 4B1.2 defined the term "crime of violence" to include "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . otherwise involves conduct that presents a serious potential risk of physical injury to another." (Emphasis added to residual clause.) The identical language is contained in the ACCA at 18 U.S.C. § 924(e)(2)(B)(ii).
A review of the Defendant's Presentence Investigation Report ("PSR"), ECF No. 70, reveals that the Defendant's base offense level was set at 20 under USSG § 2K2.1(a) due to a prior crime of violence, i.e., Third Degree Assault on an Officer. The Defendant contends his prior third degree assault on an officer conviction does not qualify as a "crime of violence" and his sentence should be vacated under Johnson. In light of the Supreme Court's decision in Beckles, however, the Defendant's argument lacks merit and the § 2255 Motion will be summarily dismissed.
USSG § 2K2.1(a) adopts the definition in USSG § 4B1.2(a) for "crime of violence." See USSG § 2K2.1, cmt. 1. --------
THEREFORE, IT IS ORDERED:
1. That the Court completed initial review of the Defendant's Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion");
2. For the reasons stated above, the § 2255 Motion, ECF No. 92, will be summarily dismissed;
3. A separate Judgment will be entered; and
4. The Clerk will mail a copy of this Memorandum and Order to the Defendant at the Defendant's last known address.
Dated this 3rd day of April, 2017.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge