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Fredrick v. United States

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

June 19, 2018




         More than six years ago, this Court sentenced Kerry Gerrard Fredrick (“Fredrick”) to 151 months' imprisonment following his conviction for distribution of controlled substances. On June 7, 2017, Fredrick, who was then detained at the Brooklyn Metropolitan Detention Facility, in Brooklyn, New York, sent the Court a letter requesting relief from his sentence. (Doc. 55.)[1]The Court has now docketed this letter as a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Fredrick contends that the Court sentenced him as a career offender and that after his sentence some of his convictions have “been deemed not to be used as a ‘crime of violence' for career offender purposes.” (Id. at p. 2.) Construing Fredrick's motion liberally, he is attempting to assert claims based on the United States Supreme Court's decision in Johnson v. United States, 576 U.S.,, 135 S.Ct. 2551, 2563 (2015). Johnson invalidated the Armed Career Criminal Act's (“ACCA”) residual clause.

         Even if Fredrick raised a valid Johnson claim, his motion is untimely as he filed it more than one year after the Supreme Court decided Johnson. Moreover, Fredrick was not convicted under the ACCA, and the Court did not rely upon the ACCA, much less the Act's residual clause, in any way during Fredrick's sentencing proceedings. Fredrick's advisory sentencing range under the United States Sentencing Guidelines did turn 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, 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, 580 U.S., 137 S.Ct. 886 (2017). Thus, Fredrick cannot rely upon Johnson to invalidate his sentence.

         For these reasons, which are explained more fully below, I RECOMMEND that the Court DENY Fredrick's Section 2255 Motion.[2] Further, I RECOMMEND that the Court DENY Fredrick a Certificate of Appealability and in forma pauperis status on appeal and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case.


         On August 5, 2010, the Grand Jury for this District charged Fredrick with four counts of distribution of controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 860. (Doc. 3.) The Government's Penalty Certification stated that Fredrick faced not less than one and no more than forty years' imprisonment as to each count. (Doc. 4.)

         However, Fredrick and his trial counsel were able to negotiate a plea agreement with the Government whereby Fredrick agreed to plead guilty to Count Four of the Indictment in exchange for the Government moving to dismiss the remaining counts. (Doc. 46.) On February 9, 2011, Fredrick appeared before the Honorable Lisa Godbey Wood, for a change of plea, or Rule 11, hearing. (Doc. 44.) Before accepting Fredrick's guilty plea, Judge Wood engaged in an extensive plea colloquy with Fredrick to ensure that Fredrick fully understood his rights and the charges against him as well as the maximum penalties associated with those charges and that Fredrick made his decision to plead guilty knowingly, voluntarily, and intelligently.

         Prior to Fredrick's sentencing hearing, United States Probation Officer Benjamin D. Pearce prepared a Pre-Sentence Investigation report (“PSI”). Probation Officer Pearce detailed Fredrick's offense conduct and criminal history and calculated Fredrick's statutory penalties, as well as his advisory Guidelines range. (PSI.) Officer Pearce concluded that Fredrick was a career offender under U.S.S.G. § 4B1.1 because: (1) Fredrick was at least eighteen years old at the time he committed the offenses in this case; (2) the offense Fredrick pleaded guilty to was a controlled substance offense; and (3) Fredrick had at least two prior felony convictions involving crimes of violence. (Id. at ¶ 28.) Specifically, Pearce detailed Fredrick's convictions for robbery, burglary, kidnapping, and aggravated sodomy. (Id. at ¶¶ 23, 24.) Fredrick's 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 ¶ 46.)

         Fredrick's counsel objected to the Probation Officer's career offender recommendation. (Addendum to PSI, p. 1.) Officer Pearce responded that the career offender enhancement was applicable because “[s]pecific crimes of violence are identified in the Application Notes for a U.S.S.G. § 4Bl.2 and include robbery, burglary of a dwelling, kidnaping, and forcible sex offenses.” (Id. at pp. 1-2.) Counsel also argued, among other things, that the court should depart downward because the career offender designation overstated Fredrick's criminal history and effectively tripled his Guidelines range. (Id. at p. 2.) The Probation Officer recommended that the Court not depart downward. (Id. at pp. 2-3.)

         On August 10, 2011, Fredrick appeared before Judge Wood for a sentencing hearing. (Doc. 50.) Judge Wood concurred with the Probation Officer's recommendations, overruled counsel's objections, and adopted the factual statements and conclusions in the PSI. (Id.) Thus, she found Fredrick's Guidelines range to be 151 to 188 months' imprisonment. (Id.) Judge Wood found that a downward departure was not warranted, and she sentenced Fredrick to 151 months' imprisonment as to Count Four. (Id.) The Court entered that judgment on August 16, 2011. (Doc. 51.) Pursuant to the plea agreement, Judge Wood dismissed the remaining counts of the Indictment against Fredrick on the Government's motion. (Id.)

         Fredrick did not file a direct appeal of his sentence. On March 30, 2015, the Court sua sponte considered a Motion to reduce Fredrick's sentence due to retroactive changes to the Guidelines. (Doc. 54.) The Court, however, denied this Motion, explaining that Fredrick 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. 54-1.)

         In his instant Section 2255 Motion, Fredrick urges the Court to revisit his sentence. (Doc. 55.) He contends that some of his prior convictions are no longer considered crimes of violence for career offender purposes. (Id. at p. 1.) Specifically, Fredrick points to the cases of United States v. Velasquez, No. 08-CR-56 (BMC), 2016 WL 4148316 (E.D.N.Y. Aug. 4, 2016), and United States v. Castro-Vazquez, 802 F.3d 28 (1st Cir. 2015). (Id. at p. 2.) Fredrick concedes, “I don't know if any of these cases can help me or not, ” but, if they do result in the invalidation of his career offender designation, he asks to be resentenced. (Id. at pp. 2-3.)


         I. Whether Fredrick Timely Filed his ...

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