United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
than four years ago, this Court sentenced Antwan Jones
(“Jones”) to 137 months' imprisonment
following his conviction for possession with intent to
distribute controlled substances. Jones, who is currently
incarcerated at the Federal Correctional Institution-Low in
Yazoo City, Mississippi, has now filed a Motion to Vacate,
Set Aside, or Correct his Sentence pursuant to 28 U.S.C.
§ 2255. (Doc. 83.) Jones 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 (June 26, 2015). (Id.)
Johnson invalidated the Armed Career Criminal
Act's (“ACCA”) residual clause. This Court
did not rely upon the ACCA, much less the Act's residual
clause, in any way during Jones' sentencing proceedings.
However, Jones points out that his advisory Sentencing
Guidelines' range turned on his classification as a
career offender under the Sentencing Guidelines, U.S.S.G.
§§ 4B1.1 and 4B1.2. Section 4B1.2(a)(2) contains
language similar to the ACCA's residual clause.
Nonetheless, following Jones' instant Section 2255
Motion, the Supreme Court 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,
Jones does not raise a valid Johnson claim, he filed
his Motion well outside of the one-year statute of
limitations of 28 U.S.C. § 2255(f). Thus, I
RECOMMEND that the Court
DISMISS Jones' Section 2255 Motion,
(doc. 83), as untimely. Alternatively, to the extent that the
Court reaches the merits of Jones' arguments, it should
DENY his Motion. Further, I
RECOMMEND that the Court
DENY Jones 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.
6, 2012, a grand jury for this District charged Jones with:
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (Count One); possession with
intent to distribute controlled substances, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Two);
and possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (Count
Three). (Doc. 1.) The Government's Penalty Certification
stated that Jones faced not more than ten years'
imprisonment as to each of Counts One and Three and not more
than twenty years' imprisonment as to Count Two. (Doc.
Jones and his trial counsel were able to negotiate a plea
agreement with the Government whereby Jones agreed to plead
guilty to Count Two of the Indictment in exchange for the
Government moving to dismiss the remaining counts. (Doc. 46.)
On November 9, 2012, Jones appeared before the Honorable Lisa
Godbey Wood for a change of plea, or Rule 11, hearing. (Doc.
44.) Before accepting Jones' guilty plea, Judge Wood
engaged in an extensive plea colloquy with Jones to ensure
that Jones fully understood his rights and the charges
against him, as well as the maximum penalties associated with
those charges, and that Jones made his decision to plead
guilty knowingly, voluntarily, and intentionally. (Doc. 65.)
to Jones' sentencing hearing, United States Probation
Officer Brian Mills prepared a Pre-Sentence Investigation
report (“PSI”). Probation Officer Mills detailed
Jones' offense conduct and criminal history and
calculated Jones' statutory penalties, as well as his
advisory Guidelines' range. Officer Mills concluded that
Jones was a career offender under U.S.S.G. § 4B1.1
because: (1) Jones was at least eighteen years old at the
time he committed the offenses in this case; (2) the offense
Jones pleaded guilty to was a controlled substance offense;
and (3) Jones had three prior felony convictions for
controlled substance offenses. (PSI, ¶¶ 29, 39, 40,
41.) Jones' offense level of 29 under Section 4B1.1,
combined with a criminal history category of VI, resulted in
a recommended Guidelines' sentencing range of 151 to 188
months. (Id. at ¶ 74.)
counsel levied objections to the PSI. (PSI Addendum.)
Specifically, he argued that Jones should not receive a
two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm in connection with the offense
conduct. (Id.) Additionally, counsel filed a motion
for downward departure, adjustment for time served in state
custody, and/or request that sentence be imposed concurrent
with remainder of state sentence. (Doc. 52.)
29, 2013, Jones appeared before Judge Wood for a sentencing
hearing. (Doc. 55.) Judge Wood overruled Jones'
counsel's objection to the Section 2D1.1(b)(1)
enhancement. (Doc. 66, pp. 25-27.) Judge Wood concurred with
and adopted the factual statements and conclusions in the PSI
and found a Guidelines' range of 151 to188 months'
imprisonment. (Id.) However, based on Jones'
counsel's motion for downward departure, his arguments at
sentencing, and the sentencing factors of 18 U.S.C. §
3553, Judge Wood varied downward from the Guidelines'
range and sentenced Jones to 137 months' imprisonment.
(Id. at pp. 42-44.) Pursuant to the plea agreement,
Judge Wood dismissed the remaining counts of the Indictment
against Jones. (Doc. 56.)
March 27, 2014, Jones filed a notice of appeal. (Doc. 59.) On
December 17, 2014, the Eleventh Circuit Court of Appeals
dismissed that appeal as untimely. (Doc. 69.) On February 26,
2015, Jones filed his first motion to vacate under Section
2255. (Doc. 71.) The Government responded that Jones'
motion was untimely and meritless. (Doc. 76.) Jones then
moved to dismiss his first Section 2255 motion without
prejudice, and the Court granted that request. (Docs. 78,
instant Section 2255 Motion, Jones argues that his counsel
was ineffective and that the Court must revisit his sentence.
(Doc. 83.) He argues that the Supreme Court's decision in
Johnson should apply to Section 4B1.2 and invalidate
his career offender designation. (Doc. 83.) The Government
responded to Jones' Motion and argues that the Eleventh
Circuit had held that Johnson does not apply at all
in the context of the advisory Sentencing Guidelines, and
specifically, does not apply to the career offender
Guideline. (Doc. 85, pp. 2-4.) Further, the Government
asserts that, even if Johnson invalidated the
Guidelines' definition of “crime of violence,
” Jones' career offender designation was not based
on that definition. Rather, he was designated a career
offender due to his convictions for “controlled
substance offenses.” (Id.) The Government
further argues that Jones' claims of ineffective
assistance of counsel are untimely, just as they were when
Jones raised them in his first Section 2255 motion.
(Id. at p. 4.) Jones filed a Reply to the
Government's Response and points out that the Supreme
Court granted certiorari in Beckles to decide
whether Johnson applied to Section 4B1.2. (Doc. 86.)
Whether Jones Timely Filed his Petition
determine whether Jones timely filed his Motion, the Court
must look to the applicable statute of limitations period.
Motions made pursuant to 28 U.S.C. § 2255 are subject to
a one-year statute of limitations period. 28 ...