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United States v. Nichols

United States District Court, D. Kansas

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMMY NICHOLS, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On September 12, 2005, the Court sentenced defendant to prison for 360 months, which it later reduced to 324 months. This matter is before the Court on defendant's Motion To Vacate Sentence [Under 28 U.S.C. § 2255] (Doc. #436) filed June 3, 2016. For reasons stated below, the Court dismisses defendant's motion to vacate as a second or successive motion under 28 U.S.C. § 2255 and grants a certificate of appealability.

         Factual Background

         On July 21, 2004, a grand jury returned an indictment which charged Sammy Nichols and others with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(ii) and 846. See Superseding Indictment (Doc. #147). On November 2, 2004, defendant pled guilty to that charge. Plea Agreement (Doc. #187). The Court determined that defendant was a career offender under Section 4B1.1(a) of the United States Sentencing Guidelines. Defendant's total offense level was 41, with a criminal history category VI, resulting in a sentencing range of 360 months to life in prison. On September 12, 2005, the Court sentenced defendant to 360 months. Defendant did not appeal.

         On February 25, 2011, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. See Motion To Vacate, Set Aside, Or Correct Sentence Of Defendant In Federal Custody Pursuant To 28 U.S.C. § 2255(f)(3) (Doc. #366). On June 21, 2011, the Court overruled defendant's motion and denied a certificate of appealability. See Memorandum And Order (Doc. #369).

         On May 31, 2016, the Tenth Circuit Court of Appeals granted defendant leave to file a second or successive Section 2255 motion to raise a claim based on Johnson v. United States, 135 S.Ct. 2551 (2015). See Order (Doc. #435). On June 3, 2016, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. Motion To Vacate Sentence (Doc. #436). Defendant asserts that under Johnson, he no longer qualifies as a career offender under Section 4B1.1 of the Guidelines and is entitled to a reduced sentence. Id. at 15-28.

         Analysis

         Defendant argues that he is entitled to relief under Johnson, which the Supreme Court decided less than one year before he filed his Section 2255 motion. In Johnson, the Supreme Court held that the residual clause portion of the “violent felony” definition under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutional under the void-for-vagueness doctrine. 135 S.Ct. at 2557-60, 2563. The Supreme Court later held that its ruling in Johnson was retroactive to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). Defendant argues that based on the reasoning in Johnson, his conviction for involuntary manslaughter no longer is a “crime of violence” under the residual clause in Section 4B1.2(a)(2) of the Guidelines.

         The government asserts that defendant's motion is barred as a second or successive motion. See Government's Response To Defendant's Motion To Vacate And Supplemental Brief (Doc. #455) filed June 23, 2017 at 15-17.[1] Under Section 2255(h), the Court can consider a second or successive motion only if a panel of the court of appeals certifies that the motion contains -

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         On May 31, 2016, the Tenth Circuit Court of Appeals granted defendant leave to file a second or successive Section 2255 motion to raise a claim based on Johnson. See Order (Doc. #435). The Tenth Circuit's authorization, however, merely reflects its preliminary determination that defendant made a prima facie showing that he could meet the requirements of Section 2244(b). LaFevers v. Gibson, 238 F.3d 1263, 1264 (10th Cir. 2001) (evaluating analogous prohibition of successive § 2254 petitions); see Case v. Hatch, 731 F.3d 1015, 1030 (10th Cir. 2013) (after petitioner makes prima facie showing to appellate panel, district court must determine whether petition in fact satisfies requirements of § 2244(b)); 28 U.S.C. § 2244(b)(3)(C) (court of appeals may authorize filing of second or successive application if it determines that application makes prima facie showing that satisfies requirements); 28 U.S.C. § 2255(h) (second or successive § 2255 motion must be certified as provided in § 2244). This Court has an independent duty to examine defendant's second Section 2255 petition and determine whether the petition does, in fact, satisfy the gatekeeping requirements of Section 2244(b). LaFevers, 238 F.3d at 1265; see 28 U.S.C. § 2244(b)(4) (district court shall dismiss any claim presented in second or successive application that court of appeals has authorized unless applicant shows that claim satisfies requirements of section); United States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018) (after court of appeals authorizes successive petition based on prima facie showing, defendant must pass through “second gate” in district court).

         Initially, the Court addresses how the Supreme Court decision in Beckles v. United States, 137 S.Ct. 886 (2017), impacts defendant's claim. On March 6, 2017, the United States Supreme Court held that despite its holding in Johnson as to the ACCA residual clause, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. Beckles, 137 S.Ct. at 892 (residual clause in § 4B1.2(a)(2) not void for vagueness); see id. at 894 (because Guidelines merely guide district court discretion, they are not amenable to vagueness challenge). The Supreme Court decision in Johnson, therefore, is not a “new rule of constitutional law” within the meaning of Section 2255(h)(2) which would support a due process challenge to the Guidelines. Defendant asserts that Beckles, which applied to the advisory Guidelines, does not foreclose his claim because this Court sentenced him under “mandatory” Guidelines. Supplemental Brief Re: Beckles (Doc. #454) filed June 1, 2017 at 1-2, 10. The Court sentenced defendant some eight months after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), which rendered the Guidelines “effectively advisory.” 543 U.S. at 245.[2] The Statement of Reasons in this case confirms that at the time of sentencing, this Court understood that the Guidelines were advisory. See Statement Of Reasons submitted September 13, 2005 at 1-3 ...


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