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Dixon v. United States

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

January 26, 2018

ANDREW DIXON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Andrew Dixon (“Dixon”), who is currently incarcerated at the Federal Correctional Institute in Jesup, Georgia, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 111.)[1] For the reasons which follow, I RECOMMEND this Court DENY Dixon's Motion to Vacate, Set Aside, or Correct his Sentence, DIRECT the Clerk of Court to CLOSE this case, and DENY Dixon a Certificate of Appealability and in forma pauperis status on appeal. Given that Dixon's Section 2255 Motion is unavailing, the Court should DENY Dixon's Motion for Bond, (doc. 128), Motion to Compel Judgment, (doc. 129), and Motion for Writ of Mandamus, (doc. 133).[2]

         BACKGROUND

         On December 6, 2012, the grand jury in this District charged Dixon with participating in a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 (Count One); possessing cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Two); possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three); and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Four). (Doc. 1.) On July 8, 2013, Dixon pleaded guilty to Counts Two and Three, possession of cocaine base and possessing a firearm as a convicted felon, respectively. (Doc. 54.) The Government agreed to dismiss the other two counts in exchange for Dixon's plea to these counts. (Doc. 77.)

         On January 6, 2014, Dixon had a supplemental change of plea hearing. (Doc. 71.) According to Dixon's Sentencing Brief, this supplemental hearing was necessitated by the fact that Dixon was not advised at his first plea hearing of the potential that he would be sentenced as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). (Doc. 73, pp. 2-3.) Dixon's designation as an armed career criminal under the ACCA was due to his prior convictions of: (1) possession of marijuana with intent to distribute; (2) felony obstruction; and (3) sale of cocaine. (Pre-Sentence Investigation Report (“PSI”), ¶¶ 41, 42, 43.)

         Having been advised of the penalties he would face under the ACCA, Dixon then entered a guilty plea at the supplemental hearing. (Doc. 71.) In the sentencing memorandum, Dixon requested that the Court sentence him to the statutory minimum under the ACCA, 180 months. (Doc. 73.) At the sentencing hearing, the Honorable William T. Moore, Jr. sentenced Dixon to 188 months' imprisonment, above the statutory minimum, but at the low end of Dixon's advisory Guideline range. (Doc. 78.) Judge Moore specifically sentenced Dixon to 188 months imprisonment as to both Counts 2 and 3 and ordered that those sentences run concurrently. (Id. at p. 2.)

         Dixon filed a direct appeal to the United States Court of Appeals for the Eleventh Circuit where, for the first time, he challenged his designation as an armed career criminal under the ACCA. (Doc. 79.) The Eleventh Circuit rejected Dixon's arguments and affirmed his sentence. (Doc. 105.) Specifically, that court found no plain error in the determination that Dixon's 1998 conviction for obstructing a law enforcement officer qualified as a “violent felony” under the ACCA. (Id. at p. 4.) The Eleventh Circuit also overruled Dixon's argument that his 1998 conviction for possessing marijuana with the intent to distribute did not qualify as a “serious drug offense.” (Id. at p. 5.)

         DISCUSSION

         In the instant Section 2255 Motion, Dixon again attacks his classification as an armed career criminal. (Docs. 111, 134.) Specifically, he contends that his conviction for felony obstruction of a law enforcement officer no longer qualifies as a “violent felony” under the ACCA following the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (June 26, 2015). (Id. at p. 16-17.)[3] In response, the Government argues that the decision in Johnson has no bearing on Dixon's status, and that his prior convictions, including his conviction for felony obstruction of a law enforcement officer, qualify as predicate felonies under the ACCA. (Doc. 118.)

         I. Whether Dixon is Entitled to Relief Pursuant to Johnson

         Federal law prohibits certain persons, including convicted felons, from shipping, possessing, or receiving firearms. 18 U.S.C. § 922(g)(1). Ordinarily, an individual that violates this prohibition faces a statutory maximum sentence of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, under statutory provisions that are commonly referred to as the “Armed Career Criminal Act” or “ACCA”, any person who violates Section 922(g) and has on three or more occasions been convicted for a “serious drug offense” or “violent felony” will receive a mandatory minimum sentence of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). “Serious drug offense” means “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). As the Supreme Court explained in Johnson, the ACCA:

defines ‘violent felony' as follows: ‘any crime punishable by imprisonment for a term exceeding one year . . . that-‘(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.' § 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized above, have come to be known as the Act's residual clause.

___ U.S. at ___, 135 S.Ct. at 2555-56. In Johnson, the Court held that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process[.]” ___ U.S. at ___, 135 S.Ct. at 2563. However, the Court also emphasized that its “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.” Id.

         In this case, Dixon argues that, because the Court considered his prior conviction for obstruction of a law enforcement official to be a violent felony under the ACCA's now-defunct residual clause, his ACCA ...


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