United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Andre Holmes was convicted by a jury of violating 18 U.S.C.
§ 922(g) (possession of a firearm by a convicted felon)
and 21 U.S.C. §§ 841(a)(1) & (b)(1)(C)
(distribution of heroin), and given an enhanced sentence of
262 months under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). See docs. 1 (indictment); 50
(superseding indictment); 85 (jury verdict); 106 (judgement
for 262 months' imprisonment); 124 (mandate affirming
judgment, filed April 4, 2017). Invoking 28 U.S.C. §
2255, he contends counsel was ineffective for failing to
object to the findings of his Presentence Investigative
Report or to argue (either in this Court or on appeal) that
his ACCA-predicate convictions did not qualify as “crimes
of violence” after Johnson v. United States,
576 U.S. ___, 135 S.Ct. 2551 (2015). Doc. 125 at 4-5.
The Johnson Decision
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). Plain vanilla, felon-in-possession convictions
fetch a maximum 10 year sentence, see 18 U.S.C.
§ 922(a)(2), while the ACCA enhancement mandates a 15
year minimum (and a maximum of life). 18 U.S.C. §
qualify as an ACCA “violent felony, ” the crime
must be an offense that (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another”; (2) “is burglary, arson,
or extortion, [or] involves the use of explosives”; or
(3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(i)-(ii). These three definitions
are known, respectively, as (1) the elements clause, (2)
enumerated crimes clause, and (3) residual clause.
Johnson held that that “residual clause”
was unconstitutionally vague. See 135 S.Ct. 2551,
2557. It said nothing, however, about ACCA enhancements
predicated on convictions for “serious drug
offenses” or “violent felonies” as defined
by ACCA provisions other than the residual clause. See,
e.g., Johnson, 135 S.Ct. at 2563
(“Today's decision does not call into question
application of the Act to the four enumerated offenses, or
the remainder of the Act's definition of a violent
felony, ” much less its definition of “serious
drug offense”). After Johnson, enhancements
based on those offenses remain valid. United States v.
Tinker, 618 Fed.Appx. 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).
disputes that his ACCA-enhanced sentence survives
Johnson. Doc. 125. But the Johnson decision
only invalidated the residual clause of the ACCA; serious
drug offenses and violent felonies within the elements clause
remain ACCA predicates.
“serious drug offense” is defined as “an
offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute a controlled substance . . ., for which a maximum
term of imprisonment of ten years or more is prescribed by
law.” 18 U.S.C. § 924(e)(2)(A)(ii). Holmes
concedes that his conviction for possession with intent to
distribute cocaine in violation of O.C.G.A. §
16-13-30(b), (d) (see doc. 127, Exh. G) qualifies as
an ACCA predicate offense. He disputes his other cocaine sale
convictions, arguing that “sales” do not qualify
as “distributing” within the meaning of the
ACCA.” Doc. 125 at 15-24. He's wrong.
three 2008 convictions and three 2012
convictions for Georgia sale of cocaine fit the §
924(e) definition of a “serious drug offense”
because: (1) it was a state law crime, (2) selling is a form
of distributing, (3) cocaine is a controlled substance, and
(4) the crime was punishable by up to thirty years at the
time he was convicted. See, e.g., Green v.
United States, 2017 WL 1100443 at *2 & n. 3 (S.D.
Ga. Jan. 9, 2017). The statute provided “Except as
authorized by this article, it is unlawful for any person to
manufacture, deliver, distribute, dispense, administer, sell
or possess with intent to distribute any controlled
substance, ” and it made such a violation “with
respect to a controlled substance in Schedule I or narcotic
drugs in Schedule II” punishable “by imprisonment
for not less than five years nor more than 30 years” on
the first offense. O.C.G.A. §§ 16-13-30(b), (d)
(version in effect from 1990-2012); Dennard v.
State, 265 Ga.App. 229, 229 (2004) (cocaine qualifies as
narcotic drug). These offenses clearly remain qualifying
“serious drug offenses” for ACCA
Johnson, Holmes' convictions for possession with
intent to distribute cocaine and the sale of cocaine in
violation of O.C.G.A. § 16-13-30(b) remain qualifying
ACCA predicates. See doc. 127, Exhs. E, F, & G;
see also In re Williams, 826 F.3d 1351, 1356 (2016)
(prior convictions for a “felony drug offense”
are “not even arguably affected by
Johnson's holding regarding the ACCA's
residual-clause definition of a violent felony.”).
That's at least four qualifying ACCA-enhancing predicate
offenses. 18 U.S.C. § 924(e)(1). Holmes' claim that
counsel was ineffective for failing to investigate and object
to the PSR -- thus disqualifying these offenses from forming
the basis of his armed career criminal enhancement -- is dead
on arrival. Counsel cannot be deficient for failing to
advance an utterly meritless argument to the court. See
Jones v. Barnes, 463 U.S. 745, 751 (1983) (there is no
“constitutional right to compel appointed counsel to
press nonfrivolous points”); Denson v. United
States, 804 F.3d 1339, 1342 (11th Cir. 2015) (the
failure to raise “a meritless objections does not
constitute deficient performance”); Nyhuis,
211 F.3d at 1344 (to prevail on an IAC claim, the claim
itself “must have merit”); Matire, 811
F.2d at 1434 (same).
Andre Holmes thus has passed the ACCA three-conviction
threshold for enhancement as an armed career criminal, and
counsel was not ineffective for failing to argue otherwise.
Accordingly, his § 2255 motion should be
DENIED on the merits.
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 recommendations 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.