Levert v. United States of America

Filing 5

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/29/2016. (JLC)

FILED
2016 Jul-29 PM 04:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES DARNELL LEVERT,
Movant-Defendant,
v.
UNITED STATES OF
AMERICA,
Respondent-Plaintiff.

)
)
)
)
)
)
)
)
)
)

Case No.: 2:16-CV-8062-VEH
(2:13-CR-119-VEH)

MEMORANDUM OPINION
This cause is before the court on Defendant James Darnell Levert’s motion
to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. §
2255. (Doc. cv-1; cr-21). The motion was filed on June 15, 2016. (Id.). It is
Levert’s first motion under section 2255.
BACKGROUND
On October 31, 2013, Levert pleaded guilty to two counts of distribution of
a mixture and substance containing a detectable amount of heroin, in violation of
21 U.S.C. § 841(a)(1). (Doc. cv-1; cr-docket entry dated 10/31/2013). On February
20, 2014, the district court (Johnson, J.) imposed sentence. (Cr-docket entry dated
2/20/2014). Judgment was entered by the district court that same date. (Doc.

cr-19). Levert was sentenced to a term of 151 months imprisonment as to each
count, with the sentences to run concurrently. (Id.). No appeal was taken.
On June 15, 2016, the criminal case was reassigned to the undersigned. (Crdocket entry dated June 15, 2016).
DISCUSSION
Because review “of the motion and the file and records of the case
conclusively show that the defendant is entitled to no relief,” the Court will not
cause notice thereof to be served upon the United States Attorney but shall
proceed to address the matter.1 See 28 U.S.C. § 2255.
I. The Motion Is Timely
On April 24, 1996, a substantial amendment to 28 U.S.C. § 2255 became
effective. That amendment, Section 105 of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, established
a one-year “period of limitation” for the filing of a Section 2255 motion, to run
from the latest of: 1) the date on which the judgment of conviction becomes final;
2) the date any unconstitutional government impediment, if any, precluding the
movant from making a motion is removed; 3) the date on which the right asserted
was initially recognized by the United States Supreme Court; or 4) the date on
1

Accordingly, the court DENIES Levert’s Motion To Appoint Counsel (Doc. cv-2).

2

which the facts supporting the claim could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255, as amended by Pub. L. No. 104-132,
Title 1, § 105 (Apr. 24, 1996).
For final judgments entered after the effective date of the AEDPA, or April
24, 1996, as in this case, the statute of limitations begins to run on the date the
district court's judgment of conviction becomes final. “For the purpose of starting
the clock on Section 2255's one-year limitation period, a judgment of conviction
becomes final when the time expires for filing a petition for certiorari contesting
the appellate court's affirmation of the conviction.” Clay v. United States, 537 U.S.
522, 525 (2003). Levert's judgment of conviction became final on March 16, 2014,
when the time for filing an appeal expired. FED. R. APP. P. 4(b)(1). Levert had
until March 16, 2015, to file a timely Section 2255 motion to vacate.
However, Levert’s petition asserts that his sentence is due to be vacated
under Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015). He thus
argues that his motion is timely under Section 2255(f)(3).2,3 Johnson was issued
2

Levert is proceeding pro se. Accordingly, this court has construed his pleading liberally.
See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per
curiam).
3

28 U.S.C. § 2255 reads in part, as follows:

(f) A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of —

3

on June 26, 2015. Thus, under paragraph (f)(3) of Section 2255, the date by which
he must present his 2255 petition asserting Johnson is June 26, 2016. Levert’s
motion clearly was timely filed.4
II. The Motion Fails
Levert alleges that the district court improperly, in light of Johnson, applied
the “Career Offender designation” to him and that his sentence was improperly
increased above the otherwise applicable “statutory maximums of the Guidelines.”
He argues that this was unconstitutional under Johnson because the “exact
language” found unconstitutional in Johnson appears in the “career offender
statutes.”

(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.
4

June 26, 2016, is a Sunday, therefore the time period is extended to the next business
day, June 27, 2016.

4

However, a review of the record conclusively shows that he is incorrect. As
explained herein, there is nothing about the manner in which Levert’s sentence
was calculated that is impacted by Johnson. Further, the Eleventh Circuit has held
that Johnson does not apply to the Sentencing Guidelines.
Levert’s sentence for his (drug distribution) crimes was enhanced under
U.S.S.G. § 4B1.1. It is undisputed that, prior to the instant offenses, Levert was
convicted of Possession of Marijuana, 1st Degree (CC 99-5872) in Jefferson
County, Alabama, Circuit Court on February 25, 2000, and Robbery, 1st Degree
(CC 06-295), in Jefferson County, Alabama, Circuit Court on January 8, 2007.
Since Levert was at least 18 years old at the time of the instant offenses, the
instant offenses are felonies that are controlled substance offenses, and Levert had
at least two prior felony convictions of either a crime of violence or a controlled
substance offense, he was properly determined to be a career offender within the
meaning of U.S.S.G. § 4B1.1.
A. Binding Eleventh Circuit Authority Bars Levert’s Argument
Under binding Eleventh Circuit authority, the holding of Johnson does not
apply to Sentencing Guidelines (as opposed to statutory) enhancements, even
though the definition of “violent felony” under the Guidelines is “nearly identical”
to the definition of “violent felony” in the ACCA. As the Eleventh Circuit
5

explains:
In Johnson, the Supreme Court held that the residual clause of the
Armed Career Criminal Act is unconstitutionally vague. The Armed
Career Criminal Act increases sentences for certain offenders who
have three previous convictions for violent felonies or serious drug
offenses. 18 U.S.C. § 924(e)(1). The definition of “violent felony”
under the Act is nearly identical to the definition of “crime *1194 of
violence” under the guidelines, and both definitions include an
identical residual clause that encapsulates crimes that “present[ ] a
serious potential risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B); U.S.S.G. § 4B1.2(a)(2). Matchett argues, and the
government agrees, that because we interpret the residual clause of
section 4B1.2(a) of the advisory guidelines in the same manner as we
interpret the residual clause of the Armed Career Criminal Act, see
Gilbert v. United States, 640 F.3d 1293, 1309 n. 16 (11th Cir.2011)
(en banc), the residual clause of section 4B1.2(a) is also
unconstitutionally vague. But “[c]onfessions of error ... do not
‘relieve this Court of the performance of the judicial function.’ ”
Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d
917 (1968) (quoting Young v. United States, 315 U.S. 257, 258, 62
S.Ct. 510, 511, 86 L.Ed. 832 (1942)). “[O]ur judgments are
precedents, and the proper administration of the criminal law cannot
be left merely to the stipulation of parties.” Id. (quoting Young, 315
U.S. at 259, 62 S.Ct. at 511) (internal quotation marks omitted).
Instead, this Court must decide for itself whether the residual clause
of section 4B1.2(a)(2) of the Guidelines is unconstitutionally vague.
By its terms, the decision of the Supreme Court in Johnson is limited
to criminal statutes that define elements of a crime or fix
punishments. The Supreme Court held that the residual clause of the
Armed Career Criminal Act “violate[d] the Constitution's guarantee
of due process,” 135 S.Ct. at 2563, because it violated “[t]he
prohibition of vagueness in criminal statutes,” id. at 2556–57. It
further explained that the vagueness doctrine “appl[ies] not only to
statutes defining elements of crimes, but also to statutes fixing
sentences.” Id. at 2557. The Armed Career Criminal Act defines a
6

crime and fixes a sentence, see 18 U.S.C. § 924(e), but the advisory
guidelines do neither. The Sentencing Guidelines are merely “the
starting point and the initial benchmark,” Gall v. United States, 552
U.S. 38, 49, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007), designed to
“assist ... the sentencing judge” in determining a sentence, United
States v. Tichenor, 683 F.3d 358, 364 (7th Cir.2012) (quoting United
States v. Brierton, 165 F.3d 1133, 1139 (7th Cir.1999)). In the end, a
sentencing judge “must make an individualized assessment based on
the facts presented” and “may not presume that the Guidelines range
is reasonable.” Gall, 552 U.S. at 50, 128 S.Ct. at 596–97. “The
sentencing judge's authority to exercise discretion distinguishes the
Guidelines from criminal statutes in a significant and undeniable
manner.” Tichenor, 683 F.3d at 365.
The vagueness doctrine, which “rest[s] on [a] lack of notice,”
Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100
L.Ed.2d 372 (1988), does not apply to advisory guidelines. The
Supreme Court has explained that “[a]ny expectation subject to due
process protection ... that a criminal defendant would receive a
sentence within the presumptively applicable guideline range did not
survive [the] decision in United States v. Booker.” Irizarry v. United
States, 553 U.S. 708, 713, 128 S.Ct. 2198, 2202, 171 L.Ed.2d 28
(2008). Another circuit has already held that “[s]ince the Guidelines
are merely advisory, defendants cannot rely on them to communicate
the sentence that the district court will impose. Defendants' inability
to look to the Guidelines for notice underscores why ... they cannot
bring vagueness challenges against the Guidelines.” Tichenor, 683
F.3d at 365 (footnote omitted).
“Because there is no constitutional right to sentencing guidelines—or,
more *1195 generally, to a less discretionary application of sentences
than that permitted prior to the Guidelines—the limitations the
Guidelines place on a judge's discretion cannot violate a defendant's
right to due process by reason of being vague.” United States v.
Wivell, 893 F.2d 156, 160 (8th Cir.1990). Before Congress enacted
the Guidelines, “the Federal Government and the States employed
indeterminate-sentencing schemes in which judges and executive
7

branch officials (e.g., parole board officials) had substantial
discretion to determine the actual length of a defendant's sentence.”
Apprendi v. New Jersey, 530 U.S. 466, 549, 120 S.Ct. 2348, 2394,
147 L.Ed.2d 435 (2000) (O'Connor, J. dissenting). Outside of the
death-penalty context, this plenary-discretion regime did not violate
the notice requirement of the Due Process Clause. See Lockett v.
Ohio, 438 U.S. 586, 602–04, 98 S.Ct. 2954, 2963–65, 57 L.Ed.2d 973
(1978); see also Wivell, 893 F.2d at 159–60. For that reason, advisory
guidelines that inform a sentencing judge's discretion also cannot
violate the notice requirement.
United States v. Matchett, 802 F.3d 1185, 1193–95 (11th Cir. 2015).
B. Levert’s Sentence Was Not Enhanced under any Residual Clause
The Armed Career Criminal Act, 18 U.S.C. § 924 (“ACCA”), defines the
term violent felony as follows:
(B) the term “violent felony” means 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; 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....
18 U.S.C.A. § 924 (West).
(B)(i) is referred to as the “elements” clause of the ACCA. the first portion of
(B)(ii) (“is burglary, arson, or extortion, involves use of explosives”) is referred to
as the “enumerated” clause of the ACCA, and the last portion of (B)(ii) (“or
otherwise involves conduct that presents a serious potential risk of physical injury

8

to another”) is referred to as the “residual” clause of the ACCA. Johnson held the
residual clause of the ACCA was unconstitutionally vague.5 However, Levert’s
earlier “crime of violence” conviction, Alabama Robbery 1st degree, whether
considered for purposes of the ACCA enhancement or the career offender
enhancement, falls under the elements clause of the ACCA (and U.S.S.G. 4B1.1 as
defined at U.S.S.G. 4B1.2), not the residual clause. This is because the elements of
Alabama Robbery 1st degree are:
(a) A person commits the crime of robbery in the first degree if he
violates Section 13A-8-43 and he:
(1) Is armed with a deadly weapon or dangerous
instrument; or
(2) Causes serious physical injury to another.
Ala. Code § 13A-8-41.
III. Conclusion
Under the binding Eleventh Circuit authority set out in Matchett, Levert’s
Motion is due to be DENIED. Additionally, even if Matchett did not bar the
court’s consideration of Levert’s argument, the argument fails on its merits
because Levert’s sentence was not impacted by any residual clause definition of
“crime of violence,” which is the language found unconstutionally vague in
5

The undersigned is aware that the Eleventh Circuit, in binding authority, has held that
Johnson “appl[ies] retroactively in the first post-conviction context.” Mays v. United States, No.
14-13477, 2016 WL 1211420, at *1 (11th Cir. March 29, 2016) (published).

9

Johnson. Accordingly, the Motion is due to be DENIED and this case will be
DISMISSED WITH PREJUDICE. Additionally, the court finds that Levert is
not entitled to a certificate of appealability.
CERTIFICATE OF APPEALABILITY DENIED
A prisoner seeking a motion to vacate has no absolute entitlement to appeal
a district court's denial of his petition. See 28 U.S.C. § 2253(c)(1). Rather, a
district court must first issue a certificate of appealability (COA). Id. “A [COA]
may issue ... only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. at § 2253(c)(2). To make such a showing, defendant
“must demonstrate that reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274,
282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the
issues presented were ‘adequate to deserve encouragement to proceed further,’ ”
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n. 4 (1983)). Levert has not made the requisite showing in these
circumstances.
Finally, because Levert is not entitled to a certificate of appealability, he is
not entitled to appeal in forma pauperis.

10

DONE and ORDERED this 29th day of July, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

11