Opinion
CRIMINAL NO. 1:12-cr-49-LG-RHW CIVIL NO. 1:16-cv-213-LG
05-02-2017
DANIEL RAY MORRIS PETITIONER v. UNITED STATES OF AMERICA RESPONDENT
ORDER DENYING MOTION MADE PURSUANT TO 28 U.S.C. § 2255 AND DENYING AS MOOT MOTION FOR VOLUNTARY DISMISSAL
BEFORE THE COURT is the [36] Motion to Vacate, Set Aside, or Correct a Federal Sentence Pursuant to 28 U.S.C. § 2255 filed by Defendant Daniel Ray Morris. Morris was sentenced to 51 months and three years supervised release for being a felon in possession of ammunition. In his § 2255 Motion, Morris challenges the constitutionality of the United States Sentencing Guideline § 4B1.2(a)(2) and further argues that his previous Mississippi state court conviction for aggravated assault should not be considered a "crime of violence" under § 4B1.2(a). Having reviewed the applicable law, the Court finds that Morris's Motion should be denied. Morris's Motion for Voluntary Dismissal [49] will be denied as moot.
Morris was sentenced under U.S.S.G. § 2k2.1 which expressly adopts the "crime of violence" definition stated in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2. Section 4B1.2(a)(2) was amended on March 10, 2017, however, the Court must analyze the text at the time of sentencing.
The Government objected to Defendant's Motion for voluntary dismissal. --------
Section 2255 provides four grounds for relief: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2225(a). Morris contends that: (1) the residual clause in § 4B1.2(a)(2) is unconstitutionally vague; and (2) that his prior Mississippi state court conviction for aggravated assault is not a "crime of violence" under § 4B1.2(a) because (a) aggravated assault does not meet the physical force requirement of § 4B1.2(a)(1); and (b) aggravated assault is not an enumerated crime under § 4B1.2(a)(2) because it is enumerated in the Commentary to § 4B1.2, but not the body of § 4B1.2(a)(2). The Court discusses each contention in turn below.
(1) "Unconstitutionally Vague"
In Johnson v. United States, 135 S. Ct. 2551 (2015), the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague because "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id. at 2557. The Johnson Court left open the question, however, of whether the identically worded residual clause contained in Sentencing Guideline § 4B1.2(a)(2) - challenged here by Morris - was constitutional.
On March 6, 2017, the Court answered that question in Beckles v. United States, 137 S. Ct. 886 (2017). Specifically the Court found that "[u]nlike the ACCA, . . . the advisory guidelines do not fix the permissible range of sentences." Id. at 892. "To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id. "Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness." Id. Thus, pursuant to Beckles, the Court finds that Morris is not entitled to 2255 relief based on the challenge that § 4B1.2(a)(2) is unconstitutionally vague. See, e.g., United States v. Garza, No. 2:11-CR-117-1, 2017 WL 932933, at *2 (S.D. Tex. Mar. 8, 2017).
(2) "Crime of Violence"
Aggravated assault in Mississippi meets the physical force requirement to qualify as a "crime of violence" under § 4B1.2(a)(1). See, e.g., Hollins v. United States, No. 2:11-CR-143-MPM-JMV, 2016 WL 6769026, at *3 (N.D. Miss. Nov. 15, 2016); Beckworth v. United States, No. 4:12CR88, 2016 WL 4203510, at *3 (N.D. Miss. Aug. 9, 2016). Therefore, Morris's argument that aggravated assault does not meet the physical force requirement is without merit.
Furthermore, Morris again relies on Johnson in arguing that aggravated assault is not a "crime of violence" under § 4B1.2(a) because it is an enumerated of offense under the Commentary to § 4B1.2, but not in the body of § 4B1.2(a)(2). Beckles is dispositive of this issue, as well. Because Beckles held that the residual clause in § 4B1.2(a)(2) is not void for vagueness, "[t]he residual clause therefore provides a textual hook for the Guideline commentary's list of enumerated offenses, making the commentary consistent with and an interpretation or explanation of § 4B1.2 text." United States v. Garces, No. 16-40699, 2017 WL 1382069, at *1 (5th Cir. Apr. 18, 2017). Thus, Morris's argument in this respect is likewise without merit.
IT IS THEREFORE ORDERED AND ADJUDGED that Petitioner Daniel Ray Morris's [36] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Petitioner Daniel Ray Morris's [49] Motion for Voluntary Dismissal is DENIED as moot.
SO ORDERED AND ADJUDGED this the 2nd day of May, 2017.
/s/_________
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE