United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
L. Bunning United States District Judge
pro se, Defendant Julius Maurice Knox filed a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255. (Doc. # 66). In his Motion, Knox
challenges his sentence pursuant to the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015) and argues he was denied effective assistance of
counsel. Pursuant to the Court's local practice, the
Motion was referred to a Magistrate Judge for preparation of
a Report and Recommendation (“R&R”).
matter is presently before the Court on Magistrate Judge
Edward B. Atkins's R&R (Doc. # 69), wherein he
recommends that the Court deny Knox's Motion to Vacate.
Knox having filed Objections to the R&R (Doc. # 70), the
United States having filed a Response to the Objections (Doc.
# 72), and Knox having filed his Reply (Doc. # 73), the
Motion is now ripe for the Court's review. Upon review,
all of Knox's Objections lack merit, except his objection
to the Magistrate Judge's reliance on his Assault in the
Third Degree conviction as predicate offenses for purposes of
the career offender guideline. Thus, the R&R will be
partially adopted as the Court's Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
following factual and procedural background is taken from the
Magistrate Judge's R&R:
On September 17, 2013, Defendant pled guilty to one count of
distributing a controlled substance stemming from his sale of
crack cocaine in a restaurant bathroom to a confidential
police informant. Defendant's criminal history is
lengthy: since the age of eighteen, Defendant has amassed
fourteen convictions. Among them, Defendant was convicted in
Kentucky for assault in the second degree under extreme
emotional disturbance in 2003, for trafficking in a
controlled substance in 2004, and assault in the third degree
(as a persistent felony offender) on a corrections employee
in 2011. Because at least two of those prior convictions were
at the time considered to be “felony convictions of
either a crime of violence or a controlled substance offense,
Defendant was classified as a “career offender.”
In the Presentence Investigation Report, the United States
Probation Officer calculated that Defendant's criminal
convictions amounted to a score of 19, qualifying him as a
Category VI offender; his status as a career offender also
placed him in Category VI ... Based on this category, the
Court ultimately sentenced Defendant to 198 months
imprisonment followed by six years of supervised release.
(Doc. # 69, p. 1-2) (internal citations omitted).
challenging his sentence and classification as a
“career offender” on direct appeal (Doc. # 62),
Knox has now filed the instant Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc.
may grant relief under 28 U.S.C. § 2255 if the defendant
establishes that: (I) the sentencing court imposed his
sentence in violation fo the Constitution or laws of the
United States; (ii) the court lacked jurisdiction to impose
the sentence; (iii) the sentence imposed exceeded the maximum
authorized by law; or (iv) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
Motion, Knox relies primarily on Johnson, and
contends that his prior conviction for assault in the second
degree under extreme emotional disturbance falls within the
residual clause of the United States Sentencing
Guidelines' “career offender” enhancement,
and that the Guidelines' residual clause has been
invalidated. In addition, Knox claims that he received
ineffective assistance of counsel during his sentencing. The
Court will consider each of Knox's arguments in turn.
“Career Offender” Designation
United States Sentencing Guideline § 4B1.1, a criminal
defendant classified as a “career offender” is
subject to an enhanced advisory sentencing guideline range.
There are three requirements for determining whether a
defendant is a “career offender”: “(1) the
defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2)
the instant offense is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). When Knox was sentenced, the
Sentencing Guidelines' “crime of violence”
and the Armed Career Criminal Act's “violent
felony” were defined similarly, as any offense
“punishable by imprisonment for a term exceeding one
year ... that ... has as an element the use, attempted, use,
or threatened use of physical force against the person of
another; or ... is murder, voluntary manslaughter, kidnaping,
aggravated assault, a forcible sex offense, ...