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Bable v. United States

United States District Court, S.D. Georgia, Brunswick Division

May 18, 2017

ERIC BABLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Eric Bable (“Bable”), who is currently incarcerated at the Federal Correctional Complex-Medium in Coleman, Florida, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) For the reasons which follow, the Court DISMISSES as moot Bable's Motion for Leave to Amend and/or Supplement. (Doc. 13.) Additionally, I RECOMMEND this Court DENY Bable's Section 2255 Motion and DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND that the Court DENY Bable a Certificate of Appealability and DENY Bable in forma pauperis status on appeal.

         BACKGROUND

         Bable pleaded guilty in this Court to one count of possession with intent to distribute oxycodone, oxymorphone, and alprazolam, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). J., United States v. Wright, 2:13-cr-29 (S.D. Ga. Apr. 16, 2014), ECF No. 43. The Honorable Lisa Godbey Wood sentenced Bable to 151 months' imprisonment. Id. at p. 2. Bable did not file a direct appeal.

         On May 13, 2016, Bable filed this Section 2255 Motion, in which he asserts he should be resentenced in light of the United States Supreme Court's decision in Johnson v. United States, ___U.S.___, 135 S.Ct. 2551 (June 26, 2015). (Doc. 1, pp. 12-13.) The Government filed a Response, (doc. 3), to which Bable filed a Reply, (doc. 4). Respondent filed a Supplemental Response to Bable's Motion, (doc. 11), after the Court granted Bable's Motion to Stay his 28 U.S.C. § 2255 Motion pending the Supreme Court's decision in Beckles v. United States, ___ U.S.___, 137 S.Ct. 886 (Mar. 6, 2017).[1] Bable then filed a Motion seeking relief pursuant to Mathis v. United States, ___U.S.___, 136 S.Ct. 2243 (2016), and a Motion for Leave to Amend and/or Supplement. (Docs. 12, 13.)[2]

         DISCUSSION

         Bable asserts his sentence under the career offender provision of the United States Sentencing Guidelines (“the Guidelines”) violates the due process clause of the Constitution. (Doc. 1-1, p. 1.) Bable specifically contends that his previous convictions under Florida law for burglary, resisting an officer with violence, and robbery by sudden snatching are no longer considered “crimes of violence” within the meaning of the Guidelines' residual clause.[3] (Id. at p. 2.) In support of these assertions, Bable relies upon the Supreme Court's decision in Johnson, which found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), (the “ACCA”), unconstitutionally vague. In addition, Bable avers the Supreme Court decisions in Descamps v. United States, ___ U.S.___, 133 S.Ct. 2276 (June 20, 2013), and Mathis v. United States, ___U.S.___, 136 S.Ct. 2243 (June 23, 2016), are retroactively applicable decisions which allow him to raise his claims relating to his erroneous career offender classification. (Doc. 12, p. 2.)

         The Government asserts the Supreme Court's decision in Beckles forecloses Bable's argument that his sentence was unconstitutionally enhanced pursuant to the Sentencing Guidelines' career offender provision. Additionally, the Government asserts that Bable's Mathis-based claims are untimely pursuant to 28 U.S.C. §§ 2255(f)(1) and (3) and are not cognizable under Section 2255. (Doc. 11.)

         I. Whether Johnson Applies to Bable's Sentence Enhancement Pursuant to the Sentencing Guidelines

         Bable moves under 28 U.S.C. § 2255 for resentencing pursuant to Johnson. In Johnson, the Supreme Court held that “imposing an increased sentence under the residual clause of the ACCA violates the Constitution's guarantee of due process[.]” ___U.S. at___, 135 S.Ct. 2551, 2563. The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms, in violation of 18 U.S.C. § 922(g), and (2) have “three prior convictions . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1) (emphasis added). The residual clause of the ACCA defines “violent felony” as, inter alia, a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. at § 924(e)(2)(B). In Johnson, the Supreme Court found the “residual clause” so vague as to violate due process. See ___U.S. at___, 135 S.Ct. at 2557. The crux of Bable's first assertion is that he no longer qualifies for an enhanced sentence under the residual clause of the Guidelines in light of the Johnson decision.

         The “crime of violence” definition contained within the Sentencing Guidelines' career offender enhancement provision is identical to the residual clause language the Supreme Court found unconstitutional in Johnson. U.S.S.G. § 4B1.2(a)(2). Despite this similarity, the Supreme Court held in Beckles that the holding of the Johnson decision does not apply to the residual clause of the Sentencing Guidelines. In Beckles, the petitioner was arrested for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). “Due to multiple prior felonies, Beckles['] violation of 18 U.S.C. § 922(g) subjected him to the enhanced penalty provision of 18 U.S.C. § 924(e)(1)[, ] and the district court found him to be an armed career criminal pursuant to that statute.” United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009). “This finding, in turn, qualified Beckles for a sentence enhancement under [Section 4B1.4 of the Sentencing Guidelines].” Id. Section 4B1.4 of the Sentencing Guidelines “instructs that the appropriate offense level is . . . [inter alia] the offense level described in § 4B1.1, if applicable.” Id. at 841- 42. “Section 4B1.1, in turn, applies if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (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.

Id. at p. 842 (citing U.S.S.G. § 4B1.1(a) (emphasis supplied)). The term “crime of violence” includes “any offense under . . . state law, punishable by imprisonment for a term exceeding one year, that . . . involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a). “At [Beckles'] sentencing, the district court found that § 4B1.1 was applicable . . . reasoning that two of Beckles['] prior felony convictions were for qualified controlled substances offenses, and the current 18 U.S.C. § 922(g) conviction [for being a felon in possession of a firearm] was for a ‘crime of violence'” Id.

         In Beckles' subsequent Section 2255 motion, he “claimed that he was improperly sentenced as a career offender under U.S.S.G. § 4B1.1, [arguing that] his conviction for possession of a sawed-off shotgun was not a ‘crime of violence.'” Beckles v. United States, 579 F. App'x 833, 833 (11th Cir. 2014), vacated, Beckles v. United States, ___U.S.___, 137 S.Ct. 886 (Mar. 6, 2017). The Eleventh Circuit Court of Appeals denied Beckles' Section 2255 motion, finding Johnson inapplicable to the Sentencing Guidelines. Beckles subsequently filed a petition for certiorari in the United States Supreme Court, again contending that the Sentencing Guidelines' residual clause is void for vagueness under Johnson. The Supreme Court granted certiorari and affirmed the decision of the Eleventh Circuit, holding that “the advisory Sentencing Guidelines, including § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine.” Beckles, ___U.S. at___, 137 S.Ct. at 896. The Court reasoned that, unlike the ACCA, “[t]he advisory Guidelines [ ] do not implicate the twin concerns underlying vagueness doctrine-providing notice and preventing arbitrary enforcement.”[4]Beckles, ___U.S. at___, 137 S.Ct. at 894. The Court further distinguished the Guidelines from the ACCA because the ACCA requires sentencing courts to increase a defendant's prison term from a statutory maximum of 10 years ...


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