United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
than five years ago, this Court sentenced Travis Tyrone Kates
(“Kates”) to 139 months' imprisonment
following his conviction for distribution of a controlled
substance. Kates, who is currently incarcerated at the United
States Penitentiary in Atlanta, Georgia, has now filed a
Motion to Vacate, Set Aside, or Correct his Sentence pursuant
to 28 U.S.C. § 2255. (Doc. 202.) Kates contends that the
Court must resentence him following the United States Supreme
Court's decision in Johnson v. United States,
576 U.S.__, __, 135 S.Ct. 2551, 2563 (June 26, 2015).
(Id.) Johnson invalidated the Armed Career
Criminal Act's (“ACCA”) residual clause. The
Court did not rely upon the ACCA, much less the Act's
residual clause, in any way during Kates' sentencing
proceedings. However, Kates 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 & 4B1.2. Section 4B1.2(a)(2)
contains language similar to the ACCA's residual clause.
However, following Kates' Section 2255 Motion, 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).
Kates 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 Kates' Motion, (doc. 202), as
untimely. Alternatively, to the extent that the Court reaches
the merits of Kates' arguments, it should
DENY his Motion. Further, I
RECOMMEND that the Court
DENY Kates 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.
August 5, 2010, the Grand Jury for this District charged
Kates, in a multi-defendant Indictment, with: conspiracy to
distribute controlled substances in violation of 21 U.S.C.
§ 846 and 18 U.S.C. § 2 (Count One); distribution
of controlled substances in violation of 21 U.S.C.
§§ 841(a)(1) and 860 (Counts Two, Three, and Four);
and possessing a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g)(1) (Counts Six and Nine). (Doc.
3.) The Government's Penalty Certification stated that
Kates faced not less than one and no more than forty
years' imprisonment as to each of Counts One, Two, Three,
and Four and not less more than ten years' imprisonment
as to Counts Six and Nine. (Doc. 4.)
Kates and his trial counsel were able to negotiate a plea
agreement with the Government whereby Kates agreed to plead
guilty to Count Four of the Indictment in exchange for the
Government moving to dismiss the remaining counts. (Doc.
177.) On April 19, 2012, Kates appeared before the Honorable
Lisa Godbey Wood, for a change of plea, or Rule 11, hearing.
(Doc. 179.) Before accepting Kates' guilty plea, Judge
Wood engaged in an extensive plea colloquy with Kates to
ensure that Kates fully understood his rights and the charges
against him as well as the maximum penalties associated with
those charges and that Kates made his decision to plead
guilty knowingly, voluntarily, and intentionally.
to Kates' sentencing hearing, United States Probation
Officer Scott Riggs prepared a Pre-Sentence Investigation
report (“PSI”). Probation Officer Riggs detailed
Kates' offense conduct and criminal history and
calculated Kates' statutory penalties, as well as his
advisory Guidelines' range. Officer Riggs concluded that
Kates was a career offender under U.S.S.G. § 4B1.1
because: (1) Kates was at least eighteen years old at the
time he committed the offenses in this case; (2) the offense
Kates pleaded guilty to was a controlled substance offense;
and (3) Kates had at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
(Id. at ¶ 25.) Specifically, Officer Riggs
noted that Kates was previously convicted of the sale of
cocaine and obstruction of an officer with violence.
(Id. at ¶¶ 39, 40.) Kates' offense
level of 29 under Section 4B1.1 combined with a criminal
history category of VI resulted in a recommended guideline
sentencing range of 151 to 188 months. (Id. at
counsel did not file any objections to the PSI, but he filed
a motion for downward departure or variance in advance of the
sentencing hearing. (Doc. 184.) Counsel argued that
Kates' career offender designation resulted in an
advisory guideline sentence that was not just or reasonable
and that did not promote respect for the law as it was out of
proportion to the seriousness of Kates' offense conduct.
August 23, 2012, Kates appeared before Judge Wood for a
sentencing hearing. (Doc. 185.) Judge Wood concurred with and
adopted the factual statements and conclusions in the PSI and
found a Guidelines' range of 151 to 188 months'
imprisonment. (Id.) Judge Wood found that Kates was
appropriately classified as a career offender but she varied
down from the Guidelines range due to the sentencing factors
at 18 U.S.C. 3553. (Id.) Thus, she sentenced Kates
to 139 months' imprisonment as to Count Four. (Doc. 186.)
Pursuant to the plea agreement, Judge Wood dismissed the
remaining counts of the Indictment against Kates.
did not file a direct appeal of his sentence. However, on
March 9, 2015, Kates filed a Motion to reduce his sentence
due to retroactive changes to the Guidelines. (Doc. 196.) The
Court denied this motion, explaining, that Kate is a career
offender and his total offense level “was determined
based upon his career offender enhancement rather than the
lower offense level produced by Chapters 2 and 3 guideline
calculations.” (Doc. 197-1.)
instant Section 2255 Motion, Kates argues that the Court must
revisit his sentence because the Supreme Court's decision
in Johnson should apply to Section 4B1.2 and
invalidate his career offender designation under the
Guidelines. (Doc. 202-1.) The Government responded in
opposition to Kates' Motion and argued that the Eleventh
Circuit Court of Appeals 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. 206.) Kates filed a Reply to
the Government's Response and pointed out the Supreme
Court had granted certiorari in Beckles to decide
whether Johnson applied to Section 4B1.2. (Doc.
207.) Acknowledging that the decision in Beckles
“is a threshold one in this case, ” Kates thus
requested the Court hold the case in abeyance pending the
Supreme Court's decision. (Id. at p. 3.)
Whether Kates Timely Filed his Section 2255 Motion
determine whether Kates 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 ...