United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted of possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1), Andrique Smith seeks
to exploit the Supreme Court's decision in Mathis v.
United States, 579 U.S. __, 136 S.Ct. 2243 (2016),
neutralize his enhanced sentence. Doc. 85; see also
docs. 1 (indictment), 53 (plea agreement), 55 (judgement for
200 months' imprisonment), & 74 (mandate of Eleventh
Circuit affirming conviction and sentence). He believes that
Mathis "may" affect the Sentencing
Guidelines-based enhancement of his sentence. Docs. 85 at 5
& 12; 85-1 at 2-3 (arguing that his "several prior
convictions" for violations of O.C.G.A. §
16-13-30(a) -- admittedly "controlled substance
offense[s] as defined by § 4B1.2" of the Sentencing
Guidelines -- are no longer considered enhancement-triggering
offenses post-M&this). His motion must be denied
per preliminary § 2255 Rule 4 review.
was sentenced as a "career offender" under the
Sentencing Guidelines -- not the ACCA. Presentence
Investigative Report at ¶ 27 (determining he qualified
as a "career offender" under U.S.S.G. § 4B1.1
based on four felony controlled substances offenses and three
felony crimes of violence). And Johnson, which
invalidated the ACCA residual clause, does not
extend to the identical language of the Sentencing
Guidelines' residual clause. Beckles v. United
States, __U.S.__, 2017 WL 855781 (Mar. 6, 2017); see
also United States v. Matchett, 802 F.3d 1185 (11th Cir.
2015) (same). Thus, Ma this (which clarified the
proper approach to be utilized in evaluating predicate crimes
of conviction for ACCA-enhancements) has zero impact
on movant's sentencing. Smith has no claim for relief.
Smith asks that the Court appoint counsel because he
"has no legal experience or education" and
"doesn't have the ability to properly present his
claims in this Court as would a professional trained and
experienced attorney." Doc. 86 at 2. The Rules Governing
§ 2255 Cases provide that appointment of counsel is
proper if an evidentiary hearing is needed or if certain
discovery is required, provided that the movant qualifies
under 18 U.S.C. § 3006A(g). Rules 6(a), 8(c). Movant has
demonstrated his ability to file appropriate pleadings
seeking § 2255 relief, and neither an evidentiary
hearing nor discovery is warranted. Jones v. United
States, 2016 WL 3476429 at *4 n. 5 (S.D. Ga. June 21,
2016), adopted, 2016 WL 4472973 (S.D. Ga. Aug. 24,
2016); Bing v. United States, 2015 WL 4092699 at * 3
(S.D. Ga. July 6, 2015), adopted, 2015 WL 675168
(S.D. Ga. Nov. 4, 2015). Movant's application for
appointment of counsel, doc. 86, is therefore DENIED.
summary, Andrique Smith's 28 U.S.C. § 2255 motion
should be DENIED. For the reasons set forth above, it is
plain that he raises no substantial claim of deprivation of a
constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b); 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."). Any
motion for leave to appeal in forma pauperis
therefore is moot.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 F.App'x 787, 790 (11th Cir. 2016);
Mitchell v. U.S., 612 F.App'x 542, 545 (11th
REPORTED AND RECOMMENDED.
 Mathis elucidated the Supreme
Court's holding in Johnson v. United, States,
576 U.S., 135 S.Ct. 2551 (2015), to explain how courts must
divine whether a criminal defendant's prior convictions
counted as "violent felonies" under the Armed
Career Criminal Act (ACCA), 18 U.S.C. 924(e)(2)(B).
The Court is citing to the criminal
docket in CR608-030 unless otherwise noted, and all page
numbers are those imprinted by the Court's docketing
See PSR at ¶¶ 37
(aggravated assault), 39 (possession with intent to
distribute marijuana and cocaine), 41 (robbery by force), 42
(possession with intent to distribute marijuana), 43
(aggravated assault), 44 (possession with intent to
distribute cocaine) & 48 (possession with intent
to distribute marijuana); see ...