Gordon v. United States of America

Filing 2

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 2/8/17. (SMH)

FILED
2017 Feb-08 PM 03:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CHRISTOPHER
GORDON,

CHARLES )
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)

CASE NO. 7:16-CV-8122-SLB
CRIM. CASE NO. 7:03-CR-0214-SLB-JEO

MEMORANDUM OPINION
This case is presently pending before the court on petitioner Christopher Charles
Gordon’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255(f)(3)
[hereinafter Motion to Vacate]. (Doc. 1; crim. doc. 53.)1 Citing Johnson v. United States,
135 S. Ct. 2551 (2015), Gordon contends that he was improperly sentenced under 18 U.S.C.
§ 924(c). Because binding Eleventh Circuit precedent bars Gordon’s claim on the merits,
the court assumes that his Motion to Vacate based on Johnson is timely filed and is not
procedurally barred. For the reasons set forth below, the court finds that Gordon’s Motion

1

Citations to documents in the court’s record in petitioner’s Motion to Vacate appear
as “(Doc. __).” Citations to documents in the court’s record in the criminal proceedings
against petitioner, Case No. 7:03-CR-0214-SLB-JEO, appear as “(Crim. Doc. __).” Page
number citations refer to the page numbers assigned to the document by the court’s CM/ECF
electronic filing system.

to Vacate is due to be denied and his petition dismissed without notice to the Government.
See 28 U.S.C. 2255(b).2
On May 1, 2003, an Indictment was filed against Gordon and his co-defendant, James
Clifton Cole. (Crim. doc. 1.) The Indictment charged Gordon with: Count One –
conspiracy “to take a motor vehicle . . . by force, violence and intimidation, with the intent
to cause death and serious bodily harm to [the victim] in violation of 28 U.S.C. § 371; Count
Two – carjacking in violation of 18 U.S.C. § 2119; and Count Three – discharging a firearm
during a crime a violence (carjacking charged in Count Two) in violation of 18 U.S.C. §
924(c)(1)(A)(iii). (Id.) These charges arose from a violent carjacking on or about January
30, 2000, during which Gordon’s co-defendant, James Clifton Cole, shot the victim in the
neck. (See crim. doc. 16 at 2-3; crim. doc. 37 at 4-5; crim. doc. 50 at 4.) During the
carjacking, Cole had a gun and forced the victim into the backseat of his vehicle, while
Gordon drove the vehicle. (Crim. doc. 50 at 6-7.) Gordon told Cole, “Shoot him if he
moves.” (Id.) The victim tried to jump out of the vehicle and Cole shot him. (Id. at 8.)
Pursuant to a Plea Agreement with the Government, Gordon pled guilty to Counts
Two and Three and the court dismissed Count One. (Crim. doc. 16; crim. doc. 39.) The
Government recommended a custodial sentence at the low end of the Sentencing Guideline
range for Count Two, which was 108 to 135 months. (Crim. doc. 16 at 1; see crim. doc. 37
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“Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b).
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at 14.) The court departed upward and sentenced Gordon to 180 months on Count Two3 and

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Because the victim of the carjacking was shot in the neck and suffered serious bodily
injury, § 2119(2) provided for a custodial sentence of not more than 25 years. 18 U.S.C.
§2119(2). During the carjacking, the victim was shot in the neck by Gordon’s co-defendant;
the victim is permanently paralyzed. He also suffered psychologically. At sentencing, the
court explained its reason for upwardly departing, stating:
THE COURT: . . . I am going to give you some credit for downward
departure, but then I am going to upwardly depart to a twenty-five year
sentence.
This is the most horrific – one of the most horrific, if not the most
horrific crime that I’ve had since I’ve been on the bench. I’ve had one death
penalty case, but other than that, this is the crime with the most horrible
injuries to a victim.
I don’t accept your version that you didn’t know a carjacking was going
on. You may not have intended for anyone to get hurt, but you put yourself
in a situation where the consequences destroyed a life.
...
I am going to read two Guideline sections that I am relying upon or
parts of them for the upward departure. Guideline 5K2.3 provides for an
upward departure for extreme psychological injury.
. . . “Psychological injury would be sufficient to warrant application
of this adjustment when there is substantial impairment of the intellectual,
psychological, emotional or behavioral functioning of a victim, when the
impairment is likely to of an extended or continuous duration and when the
impairment manifests itself by physical [or] psychological symptoms or by
changes in behavior patterns.”
It’s my understanding . . . that medical records are not required for
application of this Guideline provision, but I am going to state for the record
a few facts that I know about the victim.
He has undergone counseling . . . . He underwent counseling while at
UAB hospital. He also sees a Dr. Jensen who makes home visits with him
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periodically to talk with him about his condition.
He takes antidepressants and obviously numerous medications because
of the tightening of his muscles and problems relating to his quadriplegia.
Again, he is so traumatized about this event that he can barely discuss it. It
took quite a while for him to be able to discuss it with the probation officer.
I also believe that an upward departure is due based on Section 5K2.2,
which provides, “If significant physical injury resulted, the Court may increase
the sentence above the authorized Guideline range. The extent of increase
ordinarily should depend on the extent of the injury, the degree to which it
may prove permanent and the extent to which the injury was intended or
knowingly risked, when the victim suffers a major permanent disability. And
when such injury was intentionally inflicted, a substantial departure may be
appropriate.”
Again, the victim in this case is a quadriplegic. The injury, whether it
was intended or not, was a risk, a knowing risk, in view of the fact that a
weapon was involved this crime. Death was a risk of the crime that these
defendants engaged in.
So I base my upward departure on Guideline Sections 5K2.2, 5K2.3
and also to an extent on Section 5K2.8, which is extreme conduct, “If the
defendant’s conduct was unusually heinous, cruel or degrading to the victim,”
and I think this conduct was unusually brutal and cruel. But, primarily, it’s
based on Section 5K2.2.
The Court finds that a sentence at the high end of the Guideline range,
plus the ten year mandatory minimum sentence, does not provide adequate
punishment for this offense. The defendant and his co-defendant robbed and
shot the victim in this case and left him to die.
The injuries sustained by the victim were major, life threatening,
permanent disabilities, which were intentionally inflicted by the defendant and
his co-defendant. The victim has suffered tremendously, both physically and
psychologically, as a result of this offense.
The present Guideline range does not appropriately take into account
the intentional nature of the injuries nor the defendant’s indifference and
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a consecutive sentence of 120 months on Count Three. (Crim. Doc. 67 at 2.) The Eleventh
Circuit affirmed the court’s Judgment. (Crim. doc. 52.)
On June 29, 2016, Gordon, who is proceeding pro se, filed the instant Motion to
Vacate. (Crim. doc. 53; doc. 1.) In his Motion to Vacate, Gordon challenges his conviction
under § 924(c) based on Johnson v. United States, 135 S. Ct. 2551 (2015); he states,
“Carjacking as charged in Count Two of Movant’s Indictment cannot qualify as a ‘crime of
violence’ under § 924(c)’s residual clause nor under the remaining clause, the force clause.
Therefore, the ‘crime of violence’ element of §924(c) cannot be constitutionally sustained
under the statute.” (Doc. 1 at 7.) He also contends that his “enhanced [criminal history]
points under §§ 4A1.1(C) [sic], 4A1.2(C) [sic] [of the Sentencing Guidelines]4 and [the]

brutality in inflicting them. The psychological and physical harm inflicted on
the victim has permanently changed his life in a way that he may never
experience any future sense of normalcy.
Thus, the Court specifically finds that the Guideline Level should be a
Level 33 which, when combined with a Criminal History Category III, creates
a Guideline range of 168 to 210 months for Count Two, plus a mandatory and
consecutive sentence of 10 years Count Three, . . .
(Crim. doc. 50 at 21-25.)
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The only Chapter 4 Guidelines used to calculate Gordon’s criminal history category
were U.S.S.G. §§ 4A1.1(a) and (d) and 4A1.2(k). Citations to U.S.S.G. §§ 4A1.1(c) and
4A1.2(c) is apparently an error. Section 4A1.1(c) states, “(c) Add 1 point for each prior
sentence not counted in (a) or (b), up to a total of 4 points for this subsection.” No additional
points for uncounted criminal convictions were added to Gordon’s criminal history score.
Section 4A1.2(c), “Sentences for all felony offenses are counted. Sentences for
misdemeanor and petty offenses are counted, except as [listed therein].” Gordon did not
have any misdemeanor or petty offenses included in his criminal history calculation.
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application of [the Sentencing Guidelines is] analogous to Johnson’s constitutional
invalidation of 924(e)’s residual clause.

(Id.)

Therefore, he argues the Sentencing

Guidelines are unconstitutionally vague.
In Johnson, the Supreme Court held that the residual clause of the definition of a
“violent felony” in the Armed Career Criminal Act [“ACCA”], 18 U.S.C. § 924(e)(2)(B)(ii),
was void for vagueness. Johnson, 135 S. Ct. at 2563. The Court also held that its “decision
[did] not call into question application of the [ACCA] to the four enumerated offenses, or
the remainder of the [ACCA’s] definition of a violent felony.” Id. The decision did not
address the definition of a crime of violence found in § 924(c)(3) or the Sentencing
Guidelines.
Gordon was convicted of discharging a firearm during a crime of violence in violation
of 28 U.S.C. 924(c)(1)(A)(iii), which states:
Except to the extent that a greater minimum sentence is otherwise provided by
this subsection or by any other provision of law, any person who, during and
in relation to any crime of violence . . .(including a crime of violence . . . that
provides for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addition to the punishment
provided for such crime of violence . . . –
...
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A)(iii). “[N]o term of imprisonment imposed on a person under
[§924(c)] shall run concurrently with any other term of imprisonment imposed on the person,
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including any term of imprisonment imposed for the crime of violence . . . during which the
firearm was used, carried, or possessed.” Id. (c)(1)(D)(ii). The Act defines “crime of
violence” as –
. . . an offense that is a felony and –
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.
18 U.S.C. § 924(c)(3). Subsection (A) is referred to as the force clause and subsection (B)
is referred to as the residual clause.
In a case binding on this court, the Eleventh Circuit held that, “[e]ven assuming that
Johnson invalidated § 924(c)’s residual clause [§ 924(c)(3)(B)], that conclusion would not
assist [a defendant whose] underlying conviction on which his § 924(c) conviction was based
. . . [met] the requirements that the force clause in § 924(c)(3)(A) sets out for a qualifying
underlying offense.” In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016). Indeed, the
Eleventh Circuit specifically held that carjacking, 18 U.S.C. § 2119, is a crime of violence
under the force clause, 18 U.S.C. § 924(c)(3)(A). Smith, 829 F.3d at 1280-81 (“In short, our
precedent holds that carjacking in violation of § 2119 satisfies § 924(c)’s force clause, and
that ends the discussion.”)(footnotes omitted).
Therefore, clearly Gordon is not entitled to any relief from his § 924(c) sentence
pursuant to Johnson.
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Gordon also argues, under the rationale in Johnson, that his carjacking sentence was
improperly enhanced based on his criminal history category under the Sentencing
Guidelines. (Doc. 1 at 7, 9.) The Eleventh Circuit has held that the vagueness doctrine, the
basis for the decision in Johnson, does not apply to the Sentencing Guidelines. United
States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015); see In re Hunt, 835 F.3d 1277,
1278 (11th Cir. 2016)(“Matchett precludes the application of Johnson to an advisory
Guidelines sentence like Hunt’s. Matchett determined that the void-for-vagueness doctrine
does not apply to advisory Guidelines and therefore Johnson cannot invalidate a . . .
Guidelines sentence.” (citing Matchett, 802 F.3d at 1193-96))(internal citations and footnote
omitted). Moreover, even if such a vagueness claim were available, it would not provide any
relief to Gordon.
At sentencing, the court calculated Gordon’s criminal history points as 5. This
included 3 points for a prior felony conviction for burglary of an auto, for which he was
sentenced to 5 years, with 4 years suspended; his probation was subsequently revoked and
he was sentenced to 4 years in custody. (Crim. doc. 37 at 9 [citing U.S.S.G. §§ 4A1(a),
4A1.2(k)].) He was given 2 more criminal history points because he had committed the
instant offense when he was on probation for the burglary charge. (Id. [citing U.S.S.G.
§4A1(d)].)
Section 4A1.1(a) states that a defendant is given “3 points for each prior sentence of
imprisonment exceeding one year and one month.” Section 4A1.2(k)(1) states, “In the case

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of a prior revocation of probation . . . add the original term of imprisonment to any term of
imprisonment imposed upon revocation. The resulting total is used to compute the criminal
history points for § 4A1.1(a) . . . .” For purposes of § 4A1.1(a), defendant was sentenced
to 5 years on the burglary charge – which is a sentence of imprisonment that exceeded one
year and one month. Rather, unlike other provisions of the Sentencing Guidelines, the
assignment of criminal history points under § 4A1.1(a) and § 4A2.(k) does not require the
exercise of discretion in its application – the defendant either was or was not sentenced to
more than 13 months, including any probation revocation, on the prior conviction. Gordon
clearly had notice that he was subject to 3 criminal history points based on his prior felony
burglary conviction and sentence of imprisonment for 5 years.
Similarly, § 4A1.1(d) is not unconstitutionally vague and was properly applied to
Gordon. Subsection (d) “add[s] 2 points if the defendant committed the instant offense while
under any criminal justice sentence, including probation.” The facts are undisputed that
Gordon was on probation at the time of the carjacking. Therefore, the addition of these two
additional criminal history points was not a matter of discretion and Gordon had notice that
he was subject to an additional two criminal history points by virtue of the fact that he was
on probation from the burglary conviction on the day of the carjacking.
Gordon’s claims that the Sentencing Guidelines are unconstitutionally vague based
on the decision in Johnson are foreclosed by binding Eleventh Circuit precedent. Moreover,
his claims are without any arguable merit.

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The court finds Gordon’s Johnson claim is indistinguishable from the claim in Smith;
Eleventh Circuit precedent bars his claim that § 4A1.1 and § 4A1.2 are unconstitutionally
vague; and his claims that § 4A1.1 and § 4A1.2 are unconstitutionally vague are without any
arguable merit. Therefore, the court finds that Gordon is not entitled to relief. In light of his
plea of guilty to carjacking and to discharging a firearm during a carjacking, as well as
binding Eleventh Circuit caselaw, Gordon cannot show that his sentence violates the
Constitution or laws of the United States. See 28 U.S.C. § 2255(a). His Motion to Vacate
based on Johnson is due to be denied.
Moreover, the court finds the Motion to Vacate and the files and records of his case
conclusively show that Gordon is not entitled to relief; therefore, his habeas petition will be
dismissed without notice to the United States. See 28 U.S.C. § 2255(b).
CONCLUSION
Based on the foregoing, the Motion to Vacate, filed by petitioner Christopher Charles
Gordon, (doc. 1; crim. doc. 53), is due to be denied.

An Order denying the Motion to

Vacate and dismissing Gordon’s habeas petition will be entered contemporaneously with this
Memorandum Opinion.

CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the

10

applicant.” The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or
a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2)(emphasis added).

To make a substantial showing of the denial of a

constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).
Gordon’s habeas petition is barred by binding Eleventh Circuit precedent; reasonable
jurists could not disagree. He has not demonstrated that the issues he raises reasonably
debatable and/or deserves encouragement to proceed further. Therefore, issuance of a
certificate of appealability is not warranted in this case.
DONE this 8th day of February, 2017.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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