Ruff v. United States of America

Filing 7

ORDER denying 6 Motion for Reconsideration. Petitioner is denied COA in this case. Signed by Judge Dudley H. Bowen on 5/4/2018. (pts)

FILED

U.S. DISTRICT COURT
AUGUSTA D!V.
IN THE XJNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA 20IBHAY-U AHII:05
AUGUSTA DIVISION

CLERK
SO.5 ST. OF GA.
MARREO MONTEOUS RUFF,

Petitioner,
CV 116-114

V.

Formerly CR 115-018
UNITED STATES OF AMERICA,

Respondent.

ORDER

On September 27, 2016, this Court adopted the Report and
Recommendation of the United States Magistrate Judge, which
recommended dismissing Petitioner's motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255.

In 2015, Petitioner was convicted of one count of armed

bank

robbery and

firearm.

one

count of

felon in

possession of

a

Because Petitioner had a prior felony conviction for

a "crime of violence," his base offense level was determined
to

be

twenty

pursuant

to

the

United

Guidelines, U.S.S.G. § 2K2.1(a)(4)(A).

States

Sentencing

Following the United

States Supreme Court's decision in Johnson v. United States,
135

S.

Ct.

2551

(2015),

which

struck

down

the

"residual

clause" in the definition of a "violent felony" in the Armed
Career Criminal Act {"ACCA"), 18 U.S.C. § 924(e) (2) (B)(ii),

Petitioner challenged his sentence through the § 2255 petition
filed

in

this

case.

The

Court

dismissed

his

petition,

however, because Johnson does not apply to enhancements under
the United States Sentencing Guidelines.

(See Report and

Recommendation of Sept. 1, 2016, at 4 (citing United States v.
Matchett, 802 F.3d 1185, 1194 (ll*^^ Cir. 2015)).

At present. Petitioner returns to this Court via a motion
for reconsideration with the Supreme Court's recent decision
of Sessions v. Dimava. 138 S. Ct. 1204 (2018), in hand.

In

the Dimava case, a plurality of the Supreme Court held that
the residual clause of the federal criminal code's definition

of "crime of violence" (18 U.S.C. § 16(b)), as incorporated

into the Immigration and Nationality Act's definition of

"aggravated felony" (8 U.S.C. § 1101(a)(43)) is impennissibly
vague in violation of due process.

The Dimava case, however,

like the Johnson case, has no application to the United States
Sentencing Guidelines. In short, the Dimava case does nothing
to alter the analysis of the Report and Recommendation of the
United States Magistrate Judge in this case.

Upon

the

reconsideration

foregoing.
(doc.

no.

Petitioner's
6)

is

DENIED.

motion

for

Petitioner's

corresponding motion for appointment of counsel, docketed in
the underlying criminal case (doc. no. 66 in CR 115-018) is
DENIED AS MOOT.

Finally, a federal prisoner must obtain a

certificate of appealability

C'COA") before appealing the

denial of his motion for reconsideration.

This Court should

grant a COA only if the prisoner makes a "substantial showing
of

the

denial

2253(c)(2).

of

a

constitutional

right."

28

U.S.C.

§

For the reasons stated, Petitioner is unable to

make the requisite showing.

Accordingly, the Court DENIES a

COA in this case.^

ORDER ENTERED at Augusta, Georgia, this _

day of

May, 2018.

UNITED STATES DISTRICT JUDGE

^

Petitioner may seek a COA from the Eleventh Circuit

Court of Appeals under Federal Rule of Appellate Procedure 22.
See
Rule 11(a) of
the
Rules
Governing Section 2255
Proceedings.