United States District Court, E.D. Kentucky, Southern Division, London
REPORT AND RECOMMENDATION
dace J. Smith United States Magistrate Judge.
Rex Vaughn, pro se, has filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. (R. 65). The United States
has filed its Response (R. 69) and Defendant has filed his
Reply (R. 71). Having all relevant documents before the
Court, the matter is ripe for consideration and preparation
of a Report and Recommendation pursuant to 28 U.S.C. §
28 U.S.C. § 636(b). For the reasons set forth below, it
will be recommended that Defendant's
§ 2255 Motion (R. 65) be denied.
December 18, 2008, a federal grand jury returned an
Indictment, charging Vaughn with one count of distributing
hydrocodone (Count 1) and three counts of distributing
oxycodone (Counts 2-4), in violation of 21 U.S.C. §
841(a)(1). (R. 6). On August 26, 2009, Vaughn entered a plea
of guilty, pursuant to a written plea agreement (see
R. 51) to Count 3 of the Indictment, distributing oxycodone
(R. 46). After determining that Vaughn was a career offender
under the United States Sentencing Guidelines (U.S.S.G.),
see U.S.S.G. § 4B1.1, resulting in a sentencing
guidelines range of 151 to 188 months of imprisonment, Vaughn
was sentenced by the presiding district judge to a
below-guidelines sentence of 120 months in prison, to be
followed by three years of supervised release. (R. 52; R.
53). Judgment was entered on January 13, 2010. (R. 53).
Vaughn did not file a direct appeal. In August 2014 Defendant
moved pursuant 18 U.S.C. § 3582(c)(2) for a reduction in
his sentence based on Amendment 782 to the United States
Sentencing Guidelines (R. 56), which the Court denied. (R.
24, 2016, the Clerk of Court received and filed Vaughn's
pending § 2255 Motion. (R. 65). In it, Vaughn argues
this his prior felonies of “fleeing and eluding”
and second-degree robbery under Kentucky law no longer
qualify as crimes of violence under the sentencing guidelines
career offender provision, U.S.S.G. § 4B1.1, in light of
the Supreme Court's decision in United States v.
Johnson, 165 S.Ct. 2551 (2015). (Id. at 4). The
United States argues that Defendant's two prior felony
convictions of attempted murder and second-degree robbery
qualify as crimes of violence under both the use-of-force and
enumerated offenses clause of § 4B1.2(a), and not the
residual clause. (R. 69). In his Reply, Vaughn clarifies his
argument, conceding that his attempted murder conviction
qualifies as a crime of violence, but asserting that his
second-degree robbery conviction does not qualify as a crime
of violence under the residual clause in light of
Johnson, nor does it qualify as a crime of violence
under the enumerated offenses clause. (R. 71, at 2-7).
Johnson is not applicable to Defendant's
asserts that his Kentucky conviction for second-degree
robbery no longer qualifies as a predicate offense under
Johnson and requests to be resentenced without the
career offender designation under the sentencing guidelines.
(R. 65, at 4, 12; R. 71, at 5, 8). Vaughn asserts that
because Johnson invalidated nearly identical
language of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii), to that found in U.S.S.G. §
4B1.2(a), his robbery conviction no longer qualifies as a
crime of violence. (R. 71, at 5).
Johnson, the Supreme Court held the residual clause
of the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B)(ii), to be unconstitutionally vague. 135 S.Ct.
at 2560-63. At the time Vaughn was sentenced, U.S.S.G. §
4B1.2(a) contained an identically-worded residual clause.
U.S.S.G. § 4B1.2(a) (2009) (defining “crime of
violence” to include an offense that “involves
conduct that presents a serious potential risk of physical
injury to another”). However, although the residual
clauses are the same, the constitutional implications are
revealed by Supreme Court authority arising after the parties
briefed this matter. In Beckles v. United States,
137 S.Ct. 886, 895 (2017), the Supreme Court held that
“the advisory Sentencing Guidelines are not subject to
a vagueness challenge under the Due Process Clause and that
§ 4B1.2(a)'s residual clause is not void for
vagueness.” Accordingly, even if Vaughn's robbery
conviction were categorized as a crime of violence under the
residual clause of U.S.S.G. § 4B1.2(a), that
categorization is not impacted by Johnson. See Harris v.
United States, 686 Fed.Appx. 345, 348 (6th Cir. 2017)
(“Beckles made clear that
Johnson-like relief is not available to individuals
raising void-for-vagueness challenges to sentences imposed
pursuant to the residual clause contained in the prior
version of U.S.S.G. § 4B1.2(a).”).
Defendant's non-Johnson claim is
Defendant's non-Johnson claim is
Vaughn asserts that his second-degree robbery conviction
cannot be considered a crime of violence under the enumerated
offenses clause because it is a “commentary offense,
not a guideline offense.” (R. 71, at 7). Specifically,
Vaughn asserts that the “reference to robbery”
under the “commentary” of U.S.S.G. § 4B1.2
“must be disregarded as an enumerated offense because .
. . [it] is inconsistent with the text of the
guideline” and further “it may not expand [the
Sentencing Guideline's] scope or alter it[s]
meaning.” (Id. at 6).
extent Vaughn presents a claim not based on Johnson,
his argument is untimely. The Antiterrorism and Effective
Death Penalty Act (AEDPA) provides that federal prisoners
have a one-year limitations period in which to file a §
2255 motion. Johnson v. United States, 457 Fed.Appx.
462, 464 (6th Cir. 2012). For Vaughn, the one-year period
began to run when his judgment of conviction became final. 28
U.S.C. § 2255(f). A judgment of conviction becomes final
“at the conclusion of direct review.” Johnson
v. United States, 246 F.3d 655, 657 (6th Cir. 2001).
When a § 2255 movant does not file an appeal, the