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Clark v. United States

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

February 8, 2018

DANIEL LEE CLARK, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Nearly thirteen years ago, this Court sentenced Daniel Lee Clark (“Clark”) to 195 months' imprisonment following his convictions for possession with intent to distribute five grams or more of cocaine base and possession of a firearm in furtherance of a drug trafficking crime. Clark, who is currently incarcerated at the Federal Correctional Institution-Williamsburg in Salters, South Carolina, has now filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 42.)[1] Clark contends that the Court must resentence him following the United States Supreme Court's decision in Johnson v. United States, ___ U.S. at ___, 135 S.Ct. 2551, 2563 (June 26, 2015). (Id.) However, Johnson only invalidated the Armed Career Criminal Act's (“ACCA”) residual clause. Clark has failed to demonstrate that the Court relied upon the ACCA, much less the Act's residual clause, in any way during his sentencing proceedings. I recognize that Clark's advisory Sentencing Guidelines' range turned on his classification as a career offender under the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2). However, the Supreme Court has held that Johnson does not apply to the Guidelines and has specifically held that the decision does not invalidate Section 4B1.2(a)(2)'s definition of a “crime of violence.” Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (Mar. 6, 2017). Moreover, Johnson has no application to Clark's conviction for possessing a firearm in furtherance of a drug trafficking crime under 18 USC § 924(c).

         Because Clark does not raise a valid Johnson claim, he filed his Motion years outside of the one-year statute of limitations of 28 U.S.C. § 2255(f). Thus, I RECOMMEND that the Court DISMISS Clark's Motion, (doc. 42), as untimely. Alternatively, to the extent that the Court reaches the merits of Clark's arguments, it should DENY his Motion. Further, I RECOMMEND that the Court DENY Clark a Certificate of Appealability and in forma pauperis status on appeal and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         BACKGROUND

         On August 26, 2004, a grand jury for this District charged Clark with: possessing approximately 7.8 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Count One); possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count Two); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). (Doc. 2.) The Government's Penalty Certification stated that Clark faced not less than five and no more than forty years' imprisonment as to Count One; not less than fifteen years nor more than life imprisonment as to Count Two; and a concurrent sentence of not less than five nor more than life imprisonment as to Count Three. (Doc. 3.)

         However, Clark and his trial counsel were able to negotiate a plea agreement with the Government whereby Clark agreed to plead guilty to Counts One and Three in exchange for the Government moving to dismiss Count Two of the Indictment. (Doc. 19.) On November 23, 2004, Clark appeared before the Honorable William T. Moore, Jr., for a change of plea, or Rule 11, hearing. (Doc. 16.) At the Rule 11 hearing, Judge Moore engaged in an extensive plea colloquy with Clark to ensure that Clark fully understood his rights and the charges against him and that Clark made his decision to plead guilty knowingly, voluntarily, and intentionally. (Plea Hr'g Tr.) Among other things, Judge Moore advised Clark that the Court could impose a sentence of five to forty years' imprisonment as to a conviction for Count One and five years to life imprisonment as to a conviction for Count Three. (Id. at p. 15.) Judge Moore also made certain that Clark had discussed the Sentencing Guidelines with his counsel and that he understood generally the operation of the Guidelines. (Id. at pp. 15-17.) Prior to pleading guilty, Clark testified that no one had told him exactly what sentence he would receive, and that he understood the Court was not bound by any estimate of a sentence that Clark may have received, and that he could not withdraw his guilty plea simply because his sentence was more severe than he anticipated. (Id. at pp. 16-17, 20.)

         Special Agent Stephen Tinsley of the Drug Enforcement Administration testified to a factual basis for the plea of guilty. (Id. at pp. 22-24.) Agent Tinsley recounted the events that led to the charges against Clark. (Id.) Acting in an undercover capacity, Agent Tinsley arranged to purchase crack cocaine from Clark at a McDonald's restaurant in Pierce County, Georgia. (Id. at p. 23.) When Clark arrived at the McDonald's, officers found him to be in possession of 7.8 grams of crack cocaine and a .22 caliber pistol. (Id. at pp. 23-24.) Clark admitted to the truth of Agent Tinsley's testimony. (Id. at p. 24.)

         Prior to Clark's sentencing hearing, United States Probation Officer Marty Bragg prepared a Pre-Sentence Investigation report (“PSI”). Probation Officer Bragg detailed Clark's offense conduct and criminal history and calculated Clark's statutory penalties, as well as his advisory Guidelines' range. During his presentence interview with Officer Bragg, Clark freely admitted to possessing 7.8 grams of crack cocaine and to possessing a firearm in furtherance of that drug trafficking crime. (PSI, ¶ 11.)

         Officer Bragg concluded that Clark was a career offender under U.S.S.G. § 4B1.1 because: (1) Clark was at least eighteen years old at the time he committed the offenses in this case; (2) the offense (possession of five grams or more of crack cocaine with intent to distribute) was a controlled substance offense; and (3) Clark had at least two prior felony convictions of either a crime of violence or a controlled substance offense, as he was previously convicted of sale of cocaine and aggravated assault of a law enforcement officer. (Id. at ¶ 23.) Officer Bragg calculated Clark's Guidelines' range under Section 4B1.1(c)(2), because Clark had two counts of conviction and one of those counts was for violating 18 U.S.C. § 924(c). (Id. at ¶¶ 26-27.) Given Clark's three-level decrease for acceptance of responsibility, the Table at U.S.S.G. § 4B1.1(c)(3) provided a Guidelines' range of 262 to327 months' imprisonment under Section 4B1.1(c). (Id.)[2]

         Clark's counsel filed numerous objections to the PSI. (Id. at pp. 18-22.) He argued, among other things, that under United States v. Booker, 543 U.S. 220 (2005), it would be unconstitutional to apply Section 4B1.1(c)(3) to Clark. (Id.) Counsel also argued that Clark's criminal history category of VI significantly overrepresented the seriousness of his prior offenses. (Id.)

         On March 14, 2005, Clark appeared before Judge Moore for a sentencing hearing. Clark's counsel reiterated his argument that the career offender designation under the Guidelines violated Clark's Sixth Amendment rights under Booker. (Sent. Hr'g Trans., pp. 4-5.) Judge Moore overruled Clark's Booker objection. Judge Moore ruled that Eleventh Circuit authority and the advisory Guidelines made clear that the Court was allowed to make factual findings regarding the defendant's criminal record without a jury finding or an admission by the defendant. (Id. at pp. 5-6.)

         Clark fared much better with his objection that his criminal history category overrepresented the seriousness of his history. Judge Moore expressed the Court's concerns regarding the overrepresentation, given Clark's youth at the time of his offenses and the facts underlying his offenses. (Id. at pp. 7-8.) After hearing from counsel for Clark and the Government, Judge Moore found that “defendant is a career offender” but sustained Clark's criminal history objection. (Id. at pp. 8-12.) Judge Moore held that Clark's “criminal history category significantly over-represents the seriousness of the defendant's criminal history and the likelihood that the defendant will commit further crimes.” (Id. at p. 13.) Based on that objection, Judge Moore departed downward to find a Guidelines' range of 135 to168 months' imprisonment for the crack cocaine charge plus 60 months on the possession of a firearm charge, resulting in a final total range of 195 to 228 months' imprisonment. (Id. at p. 12.) Judge Moore sentenced Clark at the bottom of that range: a total sentence of 195 months' imprisonment consisting of 135 months' imprisonment for his crime of possession of crack cocaine with intent to distribute (Count One) and a consecutive 60 months' imprisonment for his crime of possession of a firearm in furtherance of a drug trafficking crime (Count Three). (Id. at p. 13; Doc. 20.) Pursuant to the plea agreement, Judge Moore dismissed the remaining charge of possession of a firearm by a convicted felon (Count Two). (Doc. 20.)

         Clark appealed this sentence to the United States Court of Appeals for the Eleventh Circuit. (Doc. 21.) First, Clark reiterated his Booker argument and contended Section 4B1.1 requires the Court to impermissibly find facts beyond the existence of prior convictions. See United States v. Clark, 163 F. App'x 799, 801-02 (11th Cir. 2006). The Eleventh Circuit rejected this argument for several reasons. Id. Clark also argued that his sentence was unreasonable under 18 U.S.C. § 3553(a). The Eleventh Circuit denied this argument as well. Id. at 802. The Court noted Judge Moore's downward departure in Clark's criminal history category and stated that, given Clark's resulting sentence that was seventy (70) months lower than the bottom of the Probation Officer's recommended Guidelines' range and one-quarter of the statutory maximum for his crime, “Clark is the beneficiary of a favorable guidelines calculation.” Id. For this and other reasons, the Eleventh Circuit affirmed Clark's sentence.

         However, still unsatisfied with his “favorable” sentence, Clark filed a motion to reduce sentence due to retroactive changes to the Guidelines' drug quantity table for crack cocaine. (Doc. 32.) The Court denied this motion, explaining, “[t]he defendant's motion is denied because his offense level is determined based on his designation as a career offender and not the drug quantity table.” (Doc. 33.) Clark appealed that decision, arguing that, while Judge Moore sentenced Clark as a career offender, he received a downward departure for over-representation of criminal history, and thus, his sentence was not based on the career offender Guideline. The Eleventh Circuit rejected this argument and affirmed the denial of Clark's motion. (Doc. 37.)

         In his instant Section 2255 Motion, Clark argues that the Court must revisit his sentence because the Court sentenced him under the residual clause of the ACCA, which the Supreme Court invalidated in Johnson. (Doc. 42, pp. 1-4.) He also contends his prior convictions cannot be considered crimes of violence under the ACCA's “force clause.” (Id. at pp. 7-8.) Additionally, Clark claims he was convicted for possession of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). Clark reasons that, because Section 924(c)(3)'s definition of a “crime of violence” is substantially similar to the ACCA's residual clause, his conviction relying on that definition must be invalidated under Johnson. (Id. at pp. 6-7.)

         The Government responded to Clark's Motion and explains that his arguments misconstrue the statutes under which he was actually convicted and sentenced. (Doc. 44.) The Government contends that Johnson provides Clark no relief because he was not convicted of possession of a firearm by a convicted felon under the ACCA or possession of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). (Id.) Rather, the Government explains Clark was convicted of possessing a firearm in furtherance of a drug trafficking crime. (Id.) However, the Government notes that Clark's Guidelines' range did hinge on his status as a career offender under Section 4B1.2.

         Clark filed a Reply to the Government's response where he appeared to challenge his Guidelines' career offender designation.[3] (Doc. 45.) Following Beckles, the Government filed a Supplemental Response maintaining that, to the extent that Clark attempts to use Johnson to challenge his Guidelines' career offender designation, Beckles forecloses that argument. (Doc. 48). Clark filed a Reply, arguing that he was “wrongfully sentenced by the Court as a career criminal due to the fact that the Court erroneously used his prior conviction for aggravated assault from the State of Georgia, when in fact aggravated assault is not considered a violent offense under the State of Georgia Laws and Statutes.” (Doc. 49, p. 2.)

         DISCUSSION

         I. Whether Clark Timely ...


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