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United States v. London

United States District Court, E.D. Louisiana

August 8, 2017

UNITED STATES OF AMERICA
v.
BOBBIE LONDON, JR.

         SECTION "B”

          ORDER AND REASONS

         Before the Court is Bobbie London, Jr.'s “Motion to Correct Sentence under 28 U.S.C. § 2255 Pursuant to Johnson.” Rec. Doc. 98. The Government timely filed a response memorandum. Rec. Doc. 114. Bobbie London, Jr. then filed a reply memorandum. Rec. Doc. 115. For the reasons discussed below, IT IS ORDERED that the motion to correct sentence (Rec. Doc. 98) is DENIED.

         IT IS FURTHER ORDERED that the “Joint Proposed Briefing Schedule for the Defendant's Motion to Correct Sentence under 28 U.S.C. § 2255 Pursuant to Johnson” (Rec. Doc. 97), filed before this action was stayed pending the outcome in Beckles, is DISMISSED AS MOOT.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On July 2, 1996, Bobbie London, Jr. (“Petitioner”) pled guilty to counts one through five of a superseding indictment charging him with various drug offenses. Rec. Doc. 37. On October 9, 1996, Judge A.J. McNamara sentenced Petitioner to a term of imprisonment of 327 months on each count, to be served concurrently. Rec. Doc. 64. Petitioner's sentencing took place before the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), when the United States Sentencing Guidelines were still mandatory. He was subject to an enhancement under Guidelines §§ 4B1.1 and 4B1.2 because he was considered a career offender. Rec. Doc. 98 at 1. Specifically, the Court determined that Petitioner's instant offense qualified as a “controlled substance offense” and that he had at least two qualifying prior convictions to support the enhancement. Id. at 1-2. Petitioner's previous conviction for illegal discharge of a firearm in violation of Louisiana law constituted a “crime of violence, ” while his previous conviction for distribution of cocaine constituted a “controlled substance offense.” Id. at 3; see also Rec. Doc. 108 at 1.

         On October 11, 1996, Petitioner filed a notice of appeal to the United States Court of Appeals for the Fifth Circuit; the appeal was assigned case number 96-31062. Rec. Doc. 66. It was eventually dismissed as frivolous. Rec. Doc. 90; United States v. London, 163 F.3d 1355 (5th Cir. 1998).

         On June 26, 2015, the United States Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act of 1984 (“ACCA, ” 18 U.S.C. § 924(e)(2)(B)(ii)), providing that a “violent felony” includes any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another, ” was unconstitutionally vague. 135 S.Ct. 2551, 2563 (2015). The rule in Johnson was made retroactive by Welch v. United States, 136 S.Ct. 1257 (2016).

         The Guidelines relied upon by the sentencing court in Petitioner's case contain an identical residual clause. The 1995 version, which was in effect when Petitioner was sentenced in 1996, provided that

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1 (emphasis added). In turn, “crime of violence” was defined to include:

any offense under federal or state law punishable by imprisonment for a term exceeding one year that (i) has an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(1) (emphasis added).

         Accordingly, on June 24, 2016, Petitioner filed the instant motion to correct his sentence under 28 U.S.C. § 2255. Rec. Doc. 98. He argued that, “because he was classified as a career offender based solely on the residual clause in § 4B1.2, ” his sentence was imposed in violation of the Constitution. Id. See also Rec. Doc. 108 at 1. On August 4, 2016, Petitioner's motion was held in abeyance pending the Supreme Court's decision in Beckles v. United States. Rec. Doc. 102.

         On March 6, 2017, the Beckles Court held that the advisory Guidelines are not subject to vagueness challenges.[1]137 S.Ct. 890 (2017). It reasoned that, “[u]nlike the ACCA . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” Id. at 892 (emphasis added). The Court further noted that the advisory guidelines do not implicate the two “concerns underlying the vagueness doctrine-providing notice and preventing arbitrary enforcement.” Id. at 894.[2] In other words, ...


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