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United States v. Jeffery

United States District Court, E.D. Michigan, Northern Division

February 28, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
JOSEPH LARMONT JEFFERY, Defendant-Petitioner.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, DENYING MOTIONS TO VACATE AND FOR APPOINTMENT OF COUNSEL, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS

          THOMAS L. LUDINGTON United States District Judge

         On May 19, 2015, Defendant-Petitioner Joseph Larmont Jeffrey was sentenced to 140 months of incarceration for distributing cocaine base and aiding and abetting the same. ECF No. 157. Jeffrey did not appeal. On March 28, 2016, Jeffrey filed a motion for relief. ECF No. 213. Later, Jeffrey clarified that he was requesting relief under 28 U.S.C. § 2255. ECF No. 219. Jeffrey subsequently filed a motion to amend his motion to vacate his sentence. ECF No. 245. Each of these motions were referred to Magistrate Judge Patricia T. Morris. ECF Nos. 221, 246.

         On October 25, 2016, Judge Morris issued a report recommending that Jeffrey's motions be denied and the civil case dismissed. ECF No. 247. Jeffrey then filed a letter which contains two objections. First, Jeffrey argues that subsequent case law developments impact his claims. Specifically, Jeffrey references United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) and Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).[1] In Hinkle, the Fifth Circuit extended the Supreme Court's rationale in Mathis v. United States, 136 S.Ct. 2243 (2016), to predicate drug offenses under the Career Offender Guidelines. Second, Jeffrey objects that he did not have two prior controlled substance convictions because he was only arrested once, on the same day. He argues that the single investigation and arrest should correspond to only one predicate drug charge, not two.

         On December 12, 2016, the Court ordered the Government to respond to Jeffrey's letter. The Government's first response addressed only one of Jeffrey's arguments, so the Court directed a supplemental response. ECF No. 256. On December 16, 2016, Jeffrey filed a motion for appointment of counsel. For the reasons stated below, Jeffrey's objections will be overruled, the report and recommendation will be adopted, and his motions to vacate his sentence and motion for appointment of counsel will be denied.

         I.

         In his motions to vacate, Jeffrey challenges his categorization as a career offender and argued that his counsel was ineffective. Judge Morris found that there was no merit to either argument. In his objections, Jeffrey does not challenge Judge Morris's conclusion regarding his ineffective assistance of counsel claim. Rather, his objections focus on Judge Morris's analysis regarding his career offender status.

         A.

         Jeffery first argues that he is entitled to relief pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016), Descamps v. United States, 133 S.Ct. 2276 (2013), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the Armed Career Criminal Act's (ACCA) residual clause (which defined a “violent felony” as including an offense that “involves conduct that presents a serious potential risk of physical injury to another” was unconstitutionally vague and violative of due process. 18 U.S.C. § 924(e)(2)(B)(ii). However, Jeffrey was not sentenced under the residual clause. Rather, he was sentenced under § 4B1.2(a) of the sentencing guidelines, which provides for classification of a defendant as a career criminal if the defendant has two prior controlled substance convictions. Judge Morris rested her analysis on this distinction, but Jeffrey appears to be making a different argument.

         In Mathis, the Supreme Court outlined the process by which district courts should determine if a defendant's prior conviction is one of the enumerated violent felonies listed in § 924(e)(2)(B)(ii) (defining “violent felonies” as including “burglary, arson, or extortion”). 136 S.Ct. at 2243. Prior to Mathis, the Supreme Court required district courts to compare the elements of the state crime with the generic version of the enumerated federal offense. If the state crime was “the same as, or narrower than, the relevant generic offense, ” then the state crime qualified as an enumerated offense. Id. at 2257. See also Taylor v. United States, 495 U.S. 575, 599 (1990). In Mathis, the Court reaffirmed that approach. As the Court explained: Because the inquiry focuses on the generic offense, the court “may not ask whether the defendant's conduct-his particular means of committing the crime-falls within the generic definition.” Mathis, 136 S.Ct. at 2257.[2] If the elements of the state law crime are broader than the generic version of the enumerated federal offense, then the state law conviction cannot serve as a predicate for career offender status.

         However, Supreme Court has distinguished between “elements” and “means.” Id. at 2256. According to the Court, elements are things which must be charged to establish commission of an offense, while things which need not be charged are means. Id. Sometimes, a statute will “set out one or more elements of the offense in the alternative.” Descamps, 133 S.Ct at 2281. If that is the case, then the sentencing court may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Id. That alternative element is then compared to the generic offense to determine whether it can serve as qualified enumerated offense under the ACCA. Id.[3]

         In Mathis, the Supreme Court addressed the scenario that arises when the statute lists “alternative means of fulfilling one (or more)” or the elements. 136 S.Ct. at 2253 (emphasis added). In that case, the sentencing court may not inquire into which of the different “means” of satisfying a certain element was present in the case before the court. Id. at 2256. In other words, the modified categorical approach applies to statutes with alternative elements, but does not apply to statutes with alternative means of satisfying a given element.

         As Judge Morris noted in the report and recommendation, Jeffrey was not sentenced under the violent criminal provision of the ACCA. Rather, he was sentenced under the prior controlled substance convictions provision of the Sentencing Guidelines. Because of that important distinction, the Mathis, Descamps, and Johnson decisions are not directly applicable to Jeffrey.

         In Hinkle, however, the Fifth Circuit applied the Supreme Court's reasoning in Mathis to the prior controlled substance convictions provision of the Sentencing Guidelines. 832 F.3d at 574. The Fifth Circuit recognized that Mathis dealt with the ACCA, but concluded that its reasoning regarding application of the categorical and modified categorical approaches was controlling even when determining whether the prior controlled substance convictions provision of the Sentencing Guidelines was applicable. Id. at 574-75. The Hinkle Court then concluded that the “method used to deliver a controlled substance” was a means, not an element, of committing the Texas crime. For that reason, the categorical approach was applied, meaning that the generic federal crime for delivering a controlled substance was compared in scope to all potential means of “delivering” under the Texas statute. Id. at 575-76. As the Fifth Circuit held:

The “delivery” element of Hinkle's crime of conviction criminalizes a “greater swath of conduct than the elements of the relevant [Guidelines] offense.” This “mismatch of elements” means that Hinkle's conviction for the knowing delivery of heroin is not a controlled substance offense under the Guidelines. That prior conviction cannot serve ...

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