Opinion
Criminal No. 3:10CR269-HEH
06-30-2017
UNITED STATES OF AMERICA v. DEVONN DEMETRIUS SCOTT, Petitioner.
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2255 Motion)
Petitioner, a federal inmate proceeding with counsel, submitted this motion under 28 U.S.C. § 2255 ("§ 2255 Motion") to vacate, set aside, or correct his sentence. (ECF No. 59.) Petitioner asserted that, in light of the Supreme Court's recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015), his enhanced sentence under the United States Sentencing Guidelines ("USSG") as a career offender is unconstitutional. "Recently, the Supreme Court concluded that the Guidelines are not subject to a vagueness challenge under the Due Process Clause. . . . Johnson's vagueness holding does not apply to the residual clause in [USSG] § 4B1.2(a)(2)." United States v. Lee, 855 F.3d 244, 246-47 (4th Cir. 2017) (citation omitted). Thus, Petitioner's claim lacks merit. Accordingly, the Government's Motion to Dismiss (ECF No. 64) will be granted. The § 2255 Motion (ECF No. 59) will be denied. The action will be dismissed, and the Court will deny a certificate of appealability.
As the Supreme Court has noted,
[u]nder the Armed Career Criminal Act ["ACCA"] of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a "violent felony," a term defined to include any felony that "involves conduct that presents a serious potential risk of physical injury to another."
Petitioner also asserted: (1) his prior Virginia conviction for eluding police does not qualify as a "crime of violence" under USSG's § 4B1.2(a)'s force clause (§ 2255 Mot. at 12-13); and (2) his prior Virginia conviction for assault and battery of a law enforcement officer does not qualify as a "crime of violence" under USSG's § 4B1.2(a)'s force clause (id. at 14-16). However, these challenges to his career offender enhancement under the guidelines are not cognizable under 28 U.S.C. § 2255. See Lee, 855 F.3d at 246-47; United States v. Foote, 784 F.3d 931, 939-43 (4th Cir. 2015) (holding that career offender designation is not a fundamental defect that results in a complete miscarriage of justice to warrant review of a sentence), cert. denied, 131 S. Ct. 2850 (2017); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) (explaining that, "barring extraordinary circumstances," error in the calculation of sentencing guidelines is not cognizable in a § 2255 motion). --------
An appropriate Order shall issue.
/s/_________
HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE Date: June 30, 2017
Richmond, Virginia
Johnson, 135 S. Ct. at 2555 (emphasis added) (quoting 18 U.S.C. § 924(e)(2)(B)). This part of the definition of violent felony "ha[s] come to be known as the Act's residual clause." Id. at 2556. The Johnson Court held "that imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563.