United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted of conspiracy to possess with intent to distribute
cocaine, crack cocaine, and marijuana in violation of 21
U.S.C. §§ 841(b)(1)(C) & 846, Leroy Chisholm
seeks to exploit the Supreme Court's decision in
Mathis v. United States, 579 U.S. __, 136 S.Ct. 2243
(2016),  to neutralize his enhanced sentence. Doc.
1; see CR413-007, docs. 522 (plea agreement), 523
(judgment); 674 & 687 (Eleventh Circuit opinion and
mandate affirming judgment). He believes that
Mathis, Johnson, Descamps, and a
Fifth Circuit case (United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016)) render the Sentencing
Guidelines-based enhancement of his sentence
“unconstitutional.” Doc. 1 at 3-11 (arguing that
his two prior convictions for violations of O.C.G.A. §
16-13-30 for possession of a controlled substance is
“broader” than the definition of a controlled
substance offense as defined by U.S.S.G. § 4B1.2 and
thus cannot be considered enhancement-triggering offenses
post-Mathis and Hinkle). Preliminary §
2255 Rule 4 review shows that his motion must be DENIED.
was sentenced as a “career offender” under the
Sentencing Guidelines -- not the ACCA. Presentence
Investigative Report (PSR) at ¶¶ 20 (determining he
qualified as a “career offender” under U.S.S.G.
§ 4B1.1 based on prior felony controlled substances
offenses). 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,
Mathis and Descamps (which only clarified
the proper approach to be utilized in evaluating predicate
crimes of conviction for ACCA-enhancements, both
pre- and post-Johnson) have zero impact on
movant's sentencing. Chisholm has no claim for relief.
Chisholm'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
 As his 28 U.S.C. §2241 petition
has been properly recharacterized as a 28 U.S.C. § 2255
motion to vacate his sentence, Warden Merlak is not an
appropriate respondent and the United States of America must
be substituted in.
 Mathis merely elucidated the
holdings and analyses in Johnson v. United States,
576 U.S. __, 135 S.Ct. 2551 (2015) and Descamps v. United
States, 133 S.Ct. 2276 (2013), 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). Mathis, 136 S.Ct. 2245-46 (where a
statute defines only one crime, with one set of elements but
alternative factual means by those elements may be
satisfied, it is broader than the elements of the
“generic” version of the crime and cannot be
utilized in an ACCA enhancement). It did not announce any new
rule of law, and (just like Johnson), is
inapplicable to Sentencing Guidelines-based enhancements.
See In re: Antonio Woodley, No. 17-12594-J at *2
(11th Cir. July 3, 2017) (Mathis did not establish a
new rule of constitutional law, it only clarified existing
law); Smith v. United States, 2017 WL 1745057 at *1
(S.D. Ga. May 3, 2017) (Mathis does not undo
Sentencing Guidelines enhancements -- it only serves as an
explanatory tool to analyze underlying convictions per the
modified categorical approach).
See PSR at ¶¶ 26
(possession with intent to distribute (two counts, for both
cocaine and marijuana)) & 27 (sale of a controlled
substance (cocaine)); see also doc. 523 (enhanced