Bable v. United States Of America

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . The motion to vacate is denied. Leave to appeal in forma pauperis and a certificate of appealability are denied. Clerk is directed to close case. Signed by Judge Lisa G. Wood on 8/31/17. (slt)

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Sn ?[9ntteb States! Btsftritt Court :lfor tlie ^ontliem I9tfi(trtct ot <[leorsta PrunotDtcb Btbtsiton ERIC BABLE, Movant, CIVIL ACTION NO.: 2:16-cv-68 V. (CaseNo.:2:13-cr-29) UNITED STATES OF AMERICA, Respondent. ORDER After an independent and de novo review of the entire record, the Court concurs with the Magistrate Judge's Report and Recommendation, dkt. no. 15, to which Movant Eric Bable C'Bable") filed Objections, dkt. no. 17. In his Objections, Bable asserts the decisions in Descamps v. United States, U.S. States, , 133 S. Ct. 2276 (June 20, 2013), and Mathis v. United U.S. , 136 S. Ct. 2243 (June 23, 2016), are retroactively applicable decisions which allow him to raise his claims relating to his erroneous career offender classification. Id. at p. 1. Bable asserts these decisions did not change the meaning of '^violent felony" found in the Armed Career Criminal Act, (^^ACCA"), 18 U.S.C. § 924(e). A0 72A (Rev. 8/82) Id. at p. 3. Regardless of the veracity of Bable's assertion or the potential for retroactive application of these decisions, Bable overlooks the fact that he was sentenced as a career offender under the United States Sentencing Guidelines and not as an armed career criminal under the ACCA. Thus, Descamps and Mathis offer Bable no relief, as these decisions concern the ACCA and not the career offender provision of the Sentencing Guidelines. U.S. at Descamps, , 133 S. Ct. at 2293 ("A court may use the modified approach only to determine which alternative element in a divisible stature formed the basis of the defendant's [prior] conviction[s]" for ACCA sentencing purposes.); Mathis, at U.S. , 136 S. Ct. at 2257 (finding that a defendant's burglary conviction under state law with statutory elements broader than those of a generic burglary ^'cannot give rise to an ACCA sentence[]"). Moreover, as the Magistrate Judge noted, the United States Supreme Court has foreclosed any challenge to the Sentencing Guidelines' residual clause based on the argument that the Supreme Court voided for vagueness identical language of the ACCA's residual clause in Johnson v. United States, , 135 S. Ct. 2551 (June 26, 2015). (discussing Beckles v. United States, 886 (Mar. 6, 2017)). U.S. Dkt. No. 15,. pp. 3-6 U.S. , 137 S. Ct. The Court OVERRULES Bable's Objections and ADOPTS the Magistrate Judge's Report and Recommendation, as supplemented herein, as the opinion of the Court. The Court DENIES Bable's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct his Sentence and DIRECTS the Clerk of Court to CLOSE this case. The Court DENIES Bable a Certificate of Appealability and in forma pauperis status on appeal. so ORDERED, this day of ON. LISA GQDBEJ.-WOOD, JUDGE INITED ^ATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA , 2017.

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