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United States v. Vaughn

United States District Court, E.D. Kentucky, Southern Division, London

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
REX VAUGHN, Defendant.

          REPORT AND RECOMMENDATION

          Can dace J. Smith United States Magistrate Judge.

         Defendant 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.

         I. PROCEDURAL BACKGROUND

         On 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. 64).

         On June 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).

         II. ANALYSIS

         A. Johnson is not applicable to Defendant's sentence.

         Vaughn 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).

         In 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 not.

         This is 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).”).

         B. Defendant's non-Johnson claim is barred.

         1. Defendant's non-Johnson claim is time-barred.

         Additionally, 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).

         To the 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 ยง 2255 movant does not file an appeal, the judgment ...


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