United States District Court, E.D. Michigan, Northern Division
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
L. LUDINGTON United States District Judge
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.
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). 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.
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.
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.
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
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. 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.
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.
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
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.
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
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 ...