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Gilbert v. United States

United States District Court, W.D. Michigan, Southern Division

June 12, 2017

OSCAR GILBERT, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          PAUL L. MALONEY UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Movant Oscar Gilbert's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) On August 15, 2016, the Government filed a response in opposition. (ECF No. 7.) The Court appointed counsel and permitted Movant to file a supplemental brief. (ECF No. 10.) On May 19, 2017, Movant filed his supplemental brief (ECF No. 17), and on May 31, 2017, the Government filed a response (ECF No. 18). Movant raises a challenge under Johnson v. United States, 135 S.Ct. 2551 (2015), arguing that the residual clause in the Guidelines' definition of crime of violence is unconstitutionally vague. For the reasons that follow, Movant's § 2255 motion is denied.

         I.

         On May 30, 2003, Movant pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base and to possession of a firearm as a convicted felon. (United States v. Gilbert, No. 1:03-cr-102, W.D. Mich., Plea Agreement, ECF No. 17.) The presentence investigation report noted that, although Movant was a career offender, the career-offender base-offense level was not used because the quantity-base-offense level was higher. (Id. at ECF No. 91 ¶ 55, PageID.196-97.) Movant had two prior convictions for crimes of violence: felonious assaults from January and July of 1995, qualifying him for career-offender scoring. (Id.)

         On May 23, 2016, Movant filed this motion to vacate, set aside, or correct sentence under § 2255. Movant also moved for authorization to file a second or successive § 2255 motion, which the Sixth Circuit denied on August 30, 2016. (Id. at ECF No. 111.)

         II.

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “‘a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

         III.

         A. Procedural arguments The Government argues that Movant's Johnson claim is untimely, relies upon a rule that does not apply retroactively, and is procedurally defaulted. (ECF No. 18, PageID.64.)

         The Court is not required to address procedural default issues before addressing the merits of a § 2255 petition. Jackson v. United States, No. 06-20368, 2008 WL 2357700 at *1 (E.D. Mich. June 9, 2008) (citing Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000)). Therefore, the Court will only address the merits of Movant's Johnson claim.

         B. Beckles left the question open

         The Sentencing Guidelines were mandatory until the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), rendered them advisory. In Beckles, the Supreme Court relied upon the fact that the Guidelines are now advisory to hold that they were not subject to void-for-vagueness challenges. Beckles v. United States, __ U.S__, 137 S.Ct. 886, 896 (2017). The Court opined that “only the advisory Sentencing Guidelines, including § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine.” Id. It explained:

The Guidelines thus continue to guide district courts in exercising their discretion by serving as ‘the framework for sentencing, ' Peugh v. United States, 133 S.Ct. 2072, but they ‘do not constrain th[at] discretion, ” id. (Thomas, J., dissenting). Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge. As discussed above, the system of purely discretionary sentencing that predated the Guidelines was constitutionally permissible. If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be.

Id. at 894. The Court took no position on whether Johnson applies to prisoners sentenced under the mandatory Guidelines. In fact, in her concurring opinion, ...


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