Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Nixon

United States District Court, D. Kansas

September 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DLANEY M. NIXON, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         In 2013, Defendant Dlaney Nixon entered a conditional plea of guilty to one count of armed bank robbery. He was sentenced to 140 months in prison. This matter is before the Court on Nixon's motion to vacate sentence pursuant to 28 U.S.C. § 2255, his amended motion to vacate, and the Government's motion to dismiss. Nixon argues that his sentence should be vacated or reduced in light of the U.S. Supreme Court decision Johnson v. United States, [1] which found the “residual clause” of the Armed Career Criminal Act (“ACCA”) to be unconstitutionally vague. The Court has carefully reviewed the briefs and the record, including the Presentence Investigation Report (“PSR”). Because the record conclusively shows that Nixon is not entitled to relief, the Court denies Nixon's motion to vacate (Doc. 199), dismisses Nixon's amended motion to vacate for lack of jurisdiction (Doc. 206), and grants the Government's motion to dismiss (Doc. 207).

         I. Factual and Procedural Background

         On June 19, 2013, Nixon entered a plea of guilty to one count of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). Prior to sentencing, the U.S. Probation Office prepared a PSR, which provided that Nixon was to be held accountable for unlawfully taking U.S. currency from Intrust Bank in Valley Center, Kansas. The PSR applied an enhancement under U.S.S.G. § 4B1.1 (“Chapter Four enhancement”) because the instant offense of conviction was a “crime of violence” and the defendant had two prior felony convictions of a “crime of violence.[2] The Chapter Four enhancement set the offense level at 34. Nixon's offense level was then reduced by three levels for accepting responsibility for the offense. Accordingly, Nixon's total offense level was calculated to be 31.

         The PSR noted that the maximum term of imprisonment for violating 18 U.S.C. § 2113 was 25 years imprisonment. Based upon a total offense level of 31 and a criminal history category of VI, the guideline imprisonment range under the Sentencing Guidelines was 188 to 235 months. Then, on September 6, 2013, the Court sentenced Nixon to 140 months imprisonment, to be followed by four years of supervised release. Nixon did not file a direct appeal.

         On July 5, 2016, Nixon filed a motion to vacate under 28 U.S.C. § 2255. In the motion, Nixon primarily argued that he no longer qualifies as a career offender under U.S.S.G. § 4B1.2 in the wake of the U.S. Supreme Court's decision in Johnson, given that his Kansas residential burglary convictions no longer serve as predicate “crimes of violence” under the sentencing guidelines. Shortly thereafter, the Court ordered a stay in the proceedings while the Supreme Court decided Beckles v. United States.[3]

         Beckles was decided on March 6, 2017. On March 23, 2017, Nixon filed an amended § 2255 motion (Doc. 206), arguing that he is still entitled to relief despite the outcome of Beckles. The following day, the Government filed a motion to dismiss Nixon's original motion to vacate (Doc. 207).

         II. Discussion

         In his initial motion to vacate, Nixon argues that his sentence should be reduced because he received a Chapter Four enhancement, which he contends is unconstitutional in light of Johnson and United States v. Madrid.[4] And in his amended motion to vacate, Nixon brings two new arguments that were not raised in his initial motion to vacate. First, he “claims ineffective assistance of counsel, because [he] never qualified for the career offender enhancement.” Second, he claims that the Federal Bureau of Prisons (“BOP”) “frustrated and impeded [his] ability to research, find and present his ‘never qualified' theory to the Court before the expiration of the one-year limitation imposed by the Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”). The Court will first explain Johnson and Beckles, before addressing each of Nixon's motions in turn.

         A. Johnson v. United States

         Nixon's argument is based upon Johnson, in which the Supreme Court held that certain language in the ACCA violated “the Constitution's prohibition of vague criminal laws.”[5] To understand the Johnson decision, some background information may be helpful.

         Federal law prohibits convicted felons from shipping, possessing, and receiving firearms.[6] In general, the ACCA punishes violation of this ban by a prison sentence of “not more than 10 years.”[7] But the ACCA imposes a minimum sentence of fifteen years if the violator has three or more earlier convictions for a “serious drug offense” or a “violent felony.”[8] A “violent felony” was defined in the ACCA as follows:

[A]ny 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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.[9]

         The closing words of this definition, italicized above, are known as the “residual clause” of the ACCA.[10]

         In Johnson, the Supreme Court struck down the language of the residual clause as unconstitutionally vague because “[i]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process.”[11]The Supreme Court reasoned: “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.”[12]

         In simpler terms, the “text of the residual clause provides little guidance on how to determine whether a given offense involves conduct that presents a serious potential risk of physical injury.”[13] Thus, the residual clause was unconstitutional under the void-for-vagueness doctrine, which “prohibits the government from imposing sanctions ‘under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.' ”[14]

         B. Johnson Does Not Apply to the Sentencing Guidelines

         While the Johnson holding only struck down the residual clause of the ACCA, some courts, including the Tenth Circuit, initially applied the Johnson Court's rationale to the career offender guideline of the Sentencing Guidelines.[15] The Sentencing Guidelines recommend sentencing ranges based on a defendant's conduct and characteristics. During sentencing, the District Court first calculates the sentencing range recommended by the Guidelines, and then chooses a sentence to impose. “[C]ourts are . . . required to consider the Guidelines in determining sentences, but they are not required to impose a sentence within the Guidelines range.”[16]

         In calculating a guideline sentence range, a defendant's recommended sentencing range is increased if the defendant qualifies as a “career offender.”[17] The Guidelines define a career offender as someone who, among other things, has “at least two prior felony convictions of . . . a crime of violence.”[18] A “crime of violence” is defined in § 4B1.2(a) of the Guidelines. The Guidelines definition of “crime of violence” was amended in 2016, but prior to that was defined as:

(a) . . . any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.[19]

         The final clause in § 4B1.2(a), italicized above, is also known as the “residual clause.” A quick comparison shows that the residual clause of the pre-2016 Guidelines used precisely the same language as the ACCA's residual clause.[20]

         In United States v. Madrid, [21] the Tenth Circuit, sharing the same “concerns about judicial inconsistency that motivated the [Supreme Court] in Johnson, ” held that the residual clause of the Guidelines was unconstitutionally vague.[22] In reaching this decision, the Court noted its analysis was not changed by the fact “[t]hat the Guidelines are advisory, and not statutory.”[23]Thus, under Madrid (before the decision was abrogated by the Supreme Court), a prisoner could be entitled to resentencing if the prisoner's sentence was enhanced because of the Guidelines' residual clause.

         However, this avenue of relief was very narrow. A prisoner would not be entitled to relief if the prisoner's “career offender” enhancement could still be supported without considering the Guidelines' residual clause. In other words, a “career offender” enhancement was still valid if the offender had at least two prior felony convictions that qualified as “crimes of violence” under the elements clause or the enumerated offense clause.[24]

         Not only was the relief afforded under Madrid only available to a relatively narrow class of prisoners, but the decision was short-lived. It was abrogated by the Supreme Court on March 6, 2017, when the Supreme Court decided Beckles. In Beckles, the Court considered whether the Guidelines' residual clause is also void for vagueness. But the Court concluded that “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.”[25] The Court explained that the advisory Guidelines “do not fix the permissible range of sentences” but “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.”[26] Accordingly, the Guidelines' residual clause is not void for vagueness.

         C. Nixon's Motion to Vacate is Denied

         A prisoner may make an initial post-conviction claim for relief within one year from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”[27] But the right Nixon is asserting has not been recognized by the Supreme Court, and has not been made retroactively applicable to cases on collateral review. Nixon asserts that the residual clause contained in § 4B1.2(a)'s definition of “crime of violence” is unconstitutionally vague under Johnson and, accordingly, that his prior residential burglary convictions no longer qualify as “crimes of violence” for purposes of the Chapter Four enhancement he received. While this argument could potentially have been successful under Madrid, the Supreme Court abrogated that decision and explicitly held that “the Guidelines are not subject to a vagueness challenge.”[28] Accordingly, Beckles forecloses Nixon's claim for relief.

         D. Nixon's Amended Motion to Vacate is Dismissed for Lack of Jurisdiction

         1. The Amended Motion to Vacate is a Second or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.