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Kates v. United States

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

February 13, 2018

TRAVIS TYRONE KATES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         More 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.)[1] 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).

         Because 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.

         BACKGROUND

         On 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.)

         However, 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.

         Prior 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 ¶ 68.)

         Kates' 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. (Id.)

         On 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. (Id.)

         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.)

         In his 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.)

         DISCUSSION

         I. Whether Kates Timely Filed his Section 2255 Motion

         To 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 ...


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