United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
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.)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.
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
these reasons, which are explained more fully below, I
RECOMMEND that the Court
DENY Fredrick's Section 2255
Motion. 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.
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.)
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
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.)
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.)
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.)
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.)
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.
Whether Fredrick Timely Filed his ...