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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?[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.