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Howard v. United States

United States District Court, N.D. Indiana, South Bend Division

December 2, 2016

MARCUS HOWARD a/k/a TERRELL BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE

         Terrell Brown pleaded guilty to possession with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to 360 months' imprisonment. This matter is before the court on Mr. Brown's motion to vacate and correct his sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr. Brown's motion.

         I. Background

         Mr. Brown pleaded guilty to conspiring to distribute more than fifty grams of cocaine base. He had two prior felony convictions, one for possession of a dangerous substance, and one for the Wisconsin crime of second degree reckless homicide, Wis.Stat. § 940.06(1) (1992) (committed by “recklessly caus[ing] the death of another human being”). The first was considered a “controlled substance offense” and the second a “crime of violence” under the Federal Sentencing Guidelines. U.S.S.G. §§ 4B1.2. On its own, Mr. Brown's crime qualified for a base offense level of 34. U.S.S.G. § 2D1.1(c)(3). But because of the prior convictions, the court found him to be a “career offender, ” raising his base offense level to 37. U.S.S.G. § 4B1.1. Instead of a recommended sentence between 262 and 327 months, Mr. Brown's became 360 months to life. This court sentenced Mr. Brown to 360 months.

         As part of his plea agreement, Mr. Brown agreed to the following waiver:

I am aware that my sentence will be determined in accordance with the United States Sentencing Guidelines. I am also aware that a sentence imposed under the Guidelines does not provide for parole. I agree that the court has jurisdiction and authority to impose any sentence within the statutory maximum for my offense(s) as set forth in paragraph 9(c) of this plea agreement. With that understanding, I expressly waive my right to appeal my sentence on any ground, including any appeal right conferred by Title 18, United States Code Section 3742. I also agree not to contest my sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to, a proceeding under Title 28, United States Code, Section 2255[.]

Am. Pet. to Enter a Change of Plea, ¶ 9(e) (emphasis added).

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year mandatory minimum sentence for a defendant who committed three prior “violent felonies.” The statute defines “violent felony” as:

         any crime punishable by imprisonment for a term exceeding one year . . . that -

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known as the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the “residual clause”];

18 U.S.C. § 924(e)(2)(B). Johnson held that the residual clause is unconstitutionally vague under the Due Process Clause, U.S. Const. amend. V. Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Mr. Brown wasn't sentenced under the residual clause of the definition of “violent felony” in the ACCA, but under identical language in § 4B1.2 of the guidelines defining “crime of violence.” Mr. Brown argues that reckless homicide isn't a “crime of violence” under § 4B1.2 because it isn't a “crime of violence” under the elements clause, § 4B1.2(a)(1), or the enumerated offenses clause, § 4B1.2(a)(2), and the residual clause, § 4B1.2(a)(2), is unconstitutional under Johnson.[1] As a result, he shouldn't have been subject to ยง 4B1.1's career ...


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