McKay v. United States of America, No. 4:2016cv00081 - Document 5 (S.D. Ga. 2016)
Court Description: ORDER denying 3 Motion abeyance motion. Signed by Magistrate Judge G. R. Smith on 4/11/16. (wwp)
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McKay v. United States of America Doc. 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION JOHNQUL RAMON McKAY, Movant, v. Case No. CV416-081 CR407-226 UNITED STATES OF AMERICA Respondent. REPORT AND RECOMMENDATION Johnqul Ramon McKay has filed a 28 U.S.C. § 2255 motion and moves to hold it in abeyance. Docs. 41 & 43. 1 Preliminary review under Rule 4 of the Rules Governing Section 2255 Proceedings shows that both motions must be denied. I. BACKGROUND In 2008, McKay pled guilty to and received an 18-year sentence “for using or carrying a firearm during and in relation to a drug-trafficking offense, in violation of 18 United States Code, Section 924(c).” Doc. 40 at 3, 7. The sentencing judge adopted, over no defense objection, the 1 All citations are to the CR412-278 criminal docket unless otherwise noted, and all page numbers are those imprinted by the Court’s docketing software. Dockets.Justia.com Presentence Investigation’s (PSI’s) finding and calculations. Aware of the eighteen-year sentence cap under the Fed. R. Cr. P. 11(c)(1)(C) plea agreement (PSI at 15), the judge noted the PSI’s: total offense level which has not been calculated because the sentence is determined pursuant to [U.S.S.G.] Section 4B1.1(c)(3) under the career offender provisions; the criminal history category has also not been calculated. It is 262-to-327 months of imprisonment; two to three years of supervised release; and a $250,000 fine; no restitution; and a 100-dollar special assessment. Doc. 40 at 4. Imposing the agreed-to, eighteen-year sentence, the judge observed that McKay: is a career offender pursuant to the guidelines , but the Court notes that one of the predicated offenses, as counsel has pointed out, which renders this defendant a career offender is an escape from a diversion center; and the Court recognizes that the offense of escape offers a strong potential for violence, which is why escape is considered a crime of violence. Nevertheless, the Court notes that no violence arose from the defendant’s offense of escape. And the Court also notes the defendant is a fairly young man, and that the instant term of imprisonment will be the most significant custodial term he has faced thus far in his life. Id. at 7 (emphasis added); see also PSI at 5 ¶ 15 (determining McKay to be “a career offender under § 4B1.1” “by virtue of his prior convictions for sale of cocaine base (paragraph 22) and escape (paragraph 23), in conjunction with his instant conviction.”); id. ¶ 16 (applying U.S.S.G. OJ 4B1.1(c)(3), which reflected “an advisory guideline range of 262-327 months”). Raising a Johnson claim, 1 McKay moves for 28 U.S.C. § 2255 relief but also moves the Court to hold it in abeyance until the U.S. Supreme Court decides Welch v. United States , ___ U.S. ___, 136 S.Ct. 790 (2016) (granting certiorari to decide “[w]hether Johnson v. United States , 1 See Johnson v. United States , ___ U.S. ___, 135 S. Ct. 2551, 2557-58 (2015) (sentencing enhancements imposed under the Armed Career Criminal Act’s (ACCA’s) residual clause violate due process). Under the ACCA, a felon convicted of possessing a firearm in violation of 18 U.S.C. § 922(g) who has “three prior convictions . . . for a violent felony or a serious drug offense, or both,” 18 U.S.C. § 924(e)(1), faces enhanced penalties. Plain vanilla felon-in-possession convictions face a maximum 120-month sentence, see 18 U.S.C. § 922(a)(2), while ACCA-enhanced convictions fetch a 15-year (180-month) minimum and a maximum of life. 18 U.S.C. § 924(e)(1). Johnson invalidated what’s known as the statute’s “residual clause” -- the clause defining an ACCA “violent felony” as including “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .” 18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson, 135 S. Ct. at 2560 (“Invoking so shapeless a provision to condemn someone to prison for 15 years to life” violates the Fifth Amendment's prohibition on vague criminal laws); McClouden v. United States , 2016 WL 775831 at * 6 (S.D. Ga. Feb. 25, 2016). But it did not call into question enhancements predicated on convictions under the ACCA’s first two clauses the “elements” and “enumerated” clauses. Johnson , 135 S.Ct. at 2563. After Johnson , then, no federal defendant can receive more than ten years if at least one of his ACCA-predicate convictions are counted only under the residual clause. But enhancements based on non-residual clause offenses remain valid. See United States v. Tinker , 618 F. App’x 635, 637 (11th Cir. 2015) (convictions that qualify as violent felonies under the “elements” clause of the ACCA rather than the “residual” clause survive Johnson ); McClouden , 2016 WL 775831 at * 7 (“Burglary is a specifically enumerated offense pursuant to Section 924(e)(2)(B)(ii) and thus, does not fall within the scope of that Section's residual clause”). Too, Sentencing Guideline enhancements are also unaffected by Johnson. United States v. Matchett , 802 F.3d 1185, 1194 (11th Cir. 2015). 3 U.S. ___ 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review.”); see also In re Johnson, ___ F. 3d ___, 2016 WL 762095 at * 6 (11th Cir. Feb. 26, 2016) (holding an application for leave to file a successive § 2255 motion “in abeyance, pending the Supreme Court's decision in Welch .”), vacated for reh’g en banc, F.3d ___, 2016 WL 919483 (11th Cir. Mar. 10, 2016). II. ANALYSIS Johnson is retroactively available for first § 2255 motions. Mays v. United States , ___ F.3d ___, 2016 WL 1211420 at *6 (11th Cir. Mar. 29, 2016) (“[W]e hold that Johnson applies retroactively on collateral review to prisoners seeking habeas relief for the first time.”). Nevertheless, the Court DENIES McKay’s abeyance motion (doc. 43) because his § 2255 motion fails on the merits. McKay himself admits (doc. 43 at 2) that: he qualified as a career offender under the advisory Sentencing Guidelines. PSI [1111 15 & 16]. That guideline is triggered when a defendant is convicted of a “crime of violence or a controlled substance offense” and has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). A “crime of violence” is defined, in part, in much the same way as the ACCA's “residual clause.” See U.S.S.G. § 4B1.1, comment. (n.1); id . § 4B1.2(a)(2) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”). Despite the linguistic similarity between the ACCA and 2 § 4B1.2, Johnson's reach“is limited to criminal statutes that define elements of a crime or fix punishments,” and thus is inapplicable to career offender enhancements (this claim is otherwise doublewaived). United States v. Matchett , 802 F.3d 1185, 1194 (11th Cir. 2015). Garrett v. United States , 2016 WL 1296183 at * 5 (S.D. Ga. Mar. 30, 2016). “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 Matchett , 802 F.3d at 1195. Put process by reason of being vague.” another way, “ Johnson is limited to criminal statutes that define elements of a crime or fix punishments and does not apply to the advisory sentencing guidelines that do neither.” Denson v. United States , 804 F.3d 1339, 1343 (11th Cir. 2015) (quotes and cite omitted); United States v. Collins , 624 F. App’x. 725, 726 (11th Cir. 2015) (same). III. CONCLUSION Johnqul Ramon McKay’s 28 U.S.C. § 2255 motion (doc. 41) should be DENIED . His motion to hold it in abeyance is DENIED . Doc. 43. 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), 5 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). SO REPORTED AND RECOMMENDED, this 11th day of, April, 2016. LTh11ED STATES MAGISTRATE JUDGE SOUThERN DISTRICT OF GEORGIA [;
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