Enix v. United States of America

Filing 15

ORDER denying as moot 13 motion to dismiss; denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the United States and then to CLOSE the case. Signed by Judge Susan C Bucklew on 2/21/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KEISHAN HERBERT ENIX
Petitioner,
v.

CASE NO. 8:16-cv-1801-T-24AEP
8:13-cr-122-T-24AEP

UNITED STATES OF AMERICA,
/
ORDER
Petitioner Keishan Herbert Enix, represented by counsel, filed a Motion to Vacate
pursuant to 28 U.S.C. § 2255 on July 24, 2016 and a memorandum in support on
December 5, 2016. The United States filed a motion to dismiss the § 2255 motion as
untimely on December 19, 2016 , to which Petitioner filed a response on December 27,
2016. After due consideration, the Court finds Petitioner’s motion should be denied.1
Petitioner pled guilty to conspiracy to commit a Hobbs Act Robbery in violation of
18 U.S.C. § 1951(a) (count one), and brandishing a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count three). On October
29, 2013, the Court sentenced Petitioner as a career offender to a term of imprisonment of

1

Although the United States has moved to dismiss Petitioner’s motion as untimely,
and the motion is untimely in that his convictions have been final for more than one year
and he cannot satisfy the exception under 28 U.S.C. § 2255(f)(3), the Court prefers to rule
on the merits of the motion.

84 months on count one, followed by 84 months consecutive on count three, for a total
sentence of 168 months.
Petitioner now seeks relief under the auspices of § 2255. Because this is a second §
2255 motion, Petitioner filed an application for leave to file a second or successive § 2255
motion. The Eleventh Circuit granted the application on June 28, 2016. Petitioner asserts
his claim is timely pursuant to § 2255(f)(3) because he filed his § 2255 motion within one
year of the Supreme Court’s decision in Johnson.
In ground one, Petitioner argues that his conviction on count three, brandishing a
firearm during and in relation to a crime of violence, should be vacated because his §
924(c) conviction was based on the residual clause of § 924(c)(3)(B), and because that
clause is similarly worded to the Armed Career Criminal Act’s (“ACCA”) residual clause,
it is unconstitutionally vague. In ground two, Petitioner argues his sentence as a career
offender in count one should be vacated because he was sentenced under the residual
clause of the career offender guideline and it is identically worded to the ACCA residual
clause which was held to be unconstitutionally vague. Both claims are based on Johnson
v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the
residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, a
decision that was made retroactive on collateral review by the Supreme Court in Welch v.
United States, 136 S. Ct. 1257 (2016).

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GROUND ONE : 924(c) COUNT
The Eleventh Circuit has stated that the “law is unsettled” on whether the rule
announced in Johnson applies to the similar language of § 924(c)(3)(B). See In re Pinder,
824 F. 3d 977, 978–79 (11th Cir. 2016). Furthermore, the Eleventh Circuit has not
decided whether conspiracy to commit Hobbs Act robbery categorically qualifies as a
crime of violence for purposes of § 924(c)(3)(A). Id. at 979 n.1.
Conspiracy to commit Hobbs Act robbery, unlike a Hobbs Act robbery which has
been found to qualify as a crime of violence, In re Fleur, 824 F. 3d 1337, 1340 (11th Cir.
2016), does not qualify as a crime of violence under the use of force clause of
§924(c)(3)(A). Conspiracy to commit Hobbs Act robbery does not have as an element the
use, attempted use, or threatened use of physical force against the person or property of
another as required by § 924(c)(3)(A) (the use of force clause). Therefore, it must be
considered under the residual clause of § 924(c)(3)(B) if it is found to be a crime of
violence. If the residual clause of § 924(c)(3)(B) is unconstitutionally vague, Petitioner’s
conviction on count three should be vacated. However, neither the United States Supreme
Court nor the Eleventh Circuit has found § 924(c)(3)(B) to be unconstitutionally vague.
Other Courts of Appeal that have addressed the unconstitutionality of § 924(c)(3)(B) have
come to inconsistent conclusions (Second, Sixth and Eighth Circuits rejecting
unconstitutionality and Seventh Circuit holding the residual clause in 924(c)(3)(B)
unconstitutionally vague). Petitioner’s motion must be denied as to ground one. This
Court will not get ahead of the Supreme Court and the Eleventh Circuit by “invalidating
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duly enacted and longstanding legislation by implication.” United States v. GonzalezLongoria, 831 F. 3d 670, 678 (5th Cir. 2016).
GROUND TWO: CAREER OFFENDER
In ground two, Petitioner argues that pursuant to Johnson, his career offender
sentence in count one is unconstitutional. He argues that because the Supreme Court held
the residual clause of the ACCA unconstitutionally vague, an almost identically worded
clause in the career offender sentencing guideline, USSG § 4B1.2(a)(2), must also be
unconstitutionally vague.
At sentencing, the Court found Petitioner was a career offender. A defendant is a
career offender subject to an enhanced sentence where the instant offense is a felony that
is either a crime of violence or a controlled substance offense and the defendant has at
least two prior felony convictions of either a crime of violence or a controlled substance
offense, USSG § 4B1.1(a). The prior felonies which the Court found qualified as crimes of
violence at sentencing were Florida convictions for 1) obstructing or opposing an officer
with violence, (2) fleeing and eluding, and (3) felony battery. Obstructing or opposing an
officer with violence and fleeing and eluding are still crimes of violence. See United States
v. Hill, 799 F. 3d 1318, 1322–23 (11th Cir. 2015) (resisting an officer with violence
categorically qualifies as a violent felony under the elements clause of the ACCA); United
States v. Hill, 652 Fed. Appx. 835, 836 (11th Cir. 2016) (fleeing and eluding is a qualifying
predicate of violence).

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In addition, the Eleventh Circuit has held in United States v. Matchett, 802 F. 3d
1185 (11th Cir. 2015), that even in light of Johnson the residual clause in USSG §
4B1.2(a)(2) is not unconstitutionally vague. The Supreme Court has granted certiorari on
the question of whether Johnson applies to USSG § 4B1.2(a)(2) (the residual clause).
Beckles v. United States, No. 15-8544 (U.S. June 27, 2016). However, currently
Petitioner’s claim is foreclosed by the binding precedent of Matchett. Also, even if the
residual clause of the career offender guideline was found to be unconstitutional by the
Supreme Court in Beckles, Petitioner would still be a career offender based on his prior
Florida state court convictions for obstructing and opposing an officer with violence and
fleeing and eluding.
Finally in an effort to avoid the limitations bar of 28 U.S. C. § 2255(f), Petitioner
claims he is actually innocent of his 18 U.S.C. § 924(c)(1)(A) conviction, but he is not,
and this argument is without merit. Petitioner’s motion to vacate pursuant to 28 U.S.C. §
2255 is DENIED.
ACCORDINGLY, for the reasons expressed, it is ORDERED AND
ADJUDGED that:
(1)

Petitioner’s Motion to Vacate (CV-Doc. 1; CR-Doc. 99) is DENIED.

(2)

The United States Motion to Dismiss is DENIED AS MOOT.

(3)

The Clerk is directed to enter judgment for the United States in the civil case
and then to CLOSE the civil case.
CERTIFICATE OF APPEALABILITY DENIED
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Petitioner is not entitled to a certificate of appealability. He has not shown that
reasonable jurists would debate that he has made a substantial showing of the denial of a
constitutional right. 28 U.S.C.§ 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 484 (2000)
DONE AND ORDERED at Tampa, Florida, on February 21, 2017.

Copies to: Counsel of Record

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