United States District Court, E.D. Louisiana
ORDER AND REASONS
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
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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).
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
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).
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.
March 6, 2017, the Beckles Court held that the
advisory Guidelines are not subject to vagueness
challenges.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. In other words,