Edmonds v. USA-2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/30/2018. (cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONNELL EDMONDS,
Petitioner,
Crim. No. ELH-04-240
Civil Action No. ELH-14-1873
v.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION
Donnell Edmonds has filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate, set
aside, or correct his sentence. ECF 407 (“Motion”). In the Motion, Edmonds challenges his
sentence, claiming he was erroneously found to qualify as a career offender under U.S.S.G.
§ 4B1.1. The government’s response in opposition is docketed at ECF 448.
The case dates to 2004, when Edmonds and eleven other individuals were indicted on
various offenses. Of relevance here, Edmonds was charged with conspiracy to distribute and
possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 846. ECF 1.1
The case was initially assigned to Judge J. Frederick Motz. Edmonds was released from
prison some time ago, and is presently on supervised release. The case was reassigned to me on
April 16, 2018. See Docket.
Under 28 U.S.C. § 2255(b), the Court must hold a hearing “[u]nless the motion and the
files and records conclusively show that the prisoner is entitled to no relief . . . .” See, e.g.,
United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). This is such a case. No hearing is
necessary.
1
Given the age of the case, the text of the Indictment is not available via CM/ECF.
I.
Factual and Procedural Background
Edmonds entered into a written plea agreement in which he agreed to plead guilty to the
offense of conspiracy to distribute and possess with intent to distribute five kilograms or more of
cocaine. ECF 213. Edmonds pleaded guilty before Judge Motz on May 18, 2005. See Docket.2
Sentencing was held on August 23, 2005. See Docket; see also ECF 343 (Sentencing
Transcript of August 23, 2005). At sentencing, government counsel explained that the parties
had anticipated a base offense level of 36, before the three deductions for acceptance of
responsibility, and a criminal history category of IV. ECF 343 at 6. With an offense level of 33,
Edmonds’ guidelines would have been 168 to 210 months of incarceration. However, the
Presentence Report (“PSR”) reflected that Edmonds qualified as a career offender. See ECF
4493
As the government explains in its opposition to the Motion (ECF 448), Judge Motz
determined that Edmonds qualified as a career offender under U.S.S.G. § 4B1.1. See ECF 449,
¶¶ 33, 38. On this basis, Edmonds had a base offense level of 37, an adjusted final offense level
of 34, and a criminal history category of VI, resulting in an advisory sentencing guideline range
of 262 to 327 months of incarceration. Id. at 1-2. But, the prosecutor expressly advised the
Court, as follows: “I think he should be sentenced at what was agreed upon.” ECF 343 at 7.
Therefore, the government recommended a sentence of 168 months, which corresponded to the
bottom of the anticipated guidelines range, based on a final offense level of 33 and a criminal
history of IV.
2
The Plea Agreement is not available via CM/ECF. Nor was I able to locate it in Judge
Motz’s file.
3
I located a copy of the Presentence Report in Judge Motz’s file. I docketed the report,
under seal. See ECF 449. Curiously, the PSR states that defendant pleaded guilty before Judge
Richard Bennett. Id. ¶ 2.
2
Judge Motz imposed a sentence of 162 months’ imprisonment, along with a period of
supervised release of five years. See ECF 229 (Judgment of August 24, 2005). Edmonds did not
note an appeal.
In April 2008, Edmonds filed a motion for reduction of sentence, seeking retroactive
application of the revisions to the sentencing guidelines in relation to drug quantity. ECF 320.
On June 9, 2008, Edmonds filed another motion for reduction based on retroactive application of
sentencing guidelines. ECF 327.
Judge Motz denied Edmonds’ motion for reduction of sentence on May 1, 2009. ECF
359. Edmonds noted an appeal (ECF 360), but the Fourth Circuit dismissed his appeal on
August 18, 2009. ECF 364. The Mandate issued on that date. ECF 365.
Through counsel from the Federal Public Defender’s Office,4 Edmonds filed his Motion
on June 9, 2014. ECF 407.5 In his Motion, Edmonds argues that the Supreme Court’s decision
in Descamps v. United States, 570 U.S. 254 (2013), and the Fourth Circuit’s subsequent decision
in United States v. Royal, 731 F.3d 333, 340-42 (4th Cir. 2013), cert. denied, 134 S. Ct. 1777
(2014), establish that Mr. Edmonds was erroneously designated as a career offender under
U.S.S.G. § 4B1.1, based on a prior Maryland second-degree assault conviction. Moreover, based
on Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014), Edmonds argues that the erroneous
career offender designation resulted in a severe injustice and a violation of due process. ECF
407 at 9-15. But see Whiteside v. United States, 775 F.3d 180 (4th Cir. 2014) (en banc).
At the request of the government (ECF 411), the court initially stayed the Motion on or
about July 29, 2014, in order to await the results of pending cases that would be relevant to the
4
Judge Motz appointed counsel for Mr. Edmonds. ECF 409.
5
Other docket entries are at ECF 405 and 406, reflecting that those submissions were
filed in error.
3
court’s disposition. ECF 412. Then, on November 21, 2014, Judge Motz granted Edmonds’s
motion for a sentence reduction (ECF 370), pursuant to 18 U.S.C. § 3582(c)(2). In particular,
Judge Motz reduced Edmonds’ sentence of incarceration from 162 months to 130 months. ECF
413.
According to the government, Edmonds was released from incarceration on October 30,
2015. At that point, he began to serve his five-year period of supervised release, which will
terminate on or about October 29, 2020. See ECF 437; ECF 438 (pertaining to a charge of
violation of supervised release).
As noted, the case was reassigned to me on April 16, 2018. On July 19, 2018, I asked
counsel to provide a status report. ECF 443. The government filed its report on July 26, 2018.
ECF 444. Thereafter, on July 31, 2018, the Federal Public Defender’s Office filed a motion to
withdraw as counsel. ECF 445. In its Motion, the Federal Public Defender advised that it had
asked Edmonds “if he wanted to voluntarily withdraw his § 2255 petition” in light of subsequent
judicial developments. However, the Federal Public Defender did not receive a response. I
granted the Federal Public Defender’s motion. ECF 446. The government filed its response in
opposition to the Motion on September 12, 2018. ECF 448.
II.
Discussion
As noted, in the Motion, Edmonds argues that he was erroneously sentenced as a career
offender under U.S.S.G. § 4B1.1, in that one of the two predicate convictions that subjected him
to the status of a career offender was his Maryland second degree assault conviction. And, in
light of the Supreme Court’s decision in Descamps v. United States, 570 U.S. 254 (2013), and
the Fourth Circuit’s subsequent decision in United States v. Royal, 731 F.3d 333, 340-42 (4th
Cir. 2013), cert. denied, 134 S.Ct. 1777 (2014), Edmonds contends that he no longer qualifies as
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a career offender, because his second degree assault conviction under Maryland law
categorically is not a crime of violence.
U.S.S.G. § 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant was at least eighteen years
old at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
Section 4B1.2(a) states, in part:
(a) The term “crime of violence” means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that -(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or . . . .
The scope of review of non-constitutional error is more limited than that of constitutional
error. United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). A non-constitutional
error provides a basis for collateral attack only when it involves “‘a fundamental defect which
inherently results in a complete miscarriage of justice”’ or is “‘inconsistent with the rudimentary
demands of fair procedure.’” Id. at 495-96 (citations omitted); see United States v. Newbold, 791
F.3d 455, 459 (4th Cir. 2015).
It is true that second-degree assault under Maryland law is no longer regarded as a crime
of violence, and is no longer a predicate for career offender status. However, “a mistaken career
offender designation is not cognizable on collateral review.” United States v. Newbold, 791 F.3d
455, 459 (4th Cir. 2015) (citing United States v. Foote, 784 F.3d 931, 932-33 (4th Cir. 2015),
cert. denied, 135 S. Ct. 2850 (2015)). In contrast, a defendant may challenge on collateral
review an alleged erroneous determination of armed career criminal status, because such a
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finding would have required “‘a punishment that the law cannot impose upon him.’” Newbold,
791 F.3d at 460 (citation omitted).
In Descamps, 570 U.S. at 258, the Supreme Court reiterated that the modified categorical
approach set forth in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States,
544 U.S. 13 (2005), does not apply to a state statute with a “single, indivisible set of elements.”
It stated that sentencing courts “may not apply the modified categorical approach when the crime
of which the defendant was convicted has a single, indivisible set of elements.” Id.; see also e.g.,
Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013); Begay v. United States, 553 U.S. 137, 141
(2008); James v. United States, 550 U.S. 192, 202 (2008).
Thereafter, in Royal, 731 F.3d 333, the Fourth Circuit concluded that Maryland’s crime
of second-degree assault, Md. Code (2012 Repl. Vol., 2016 Supp.), §3-203 of the Criminal Law
Article, is not divisible and therefore is categorically not a crime of violence. Id. at 341. The
Royal Court determined that the district court erred in using the modified categorical approach to
determine that the defendant's prior second-degree assault conviction constituted a violent felony
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Id.
As noted, Edmonds did not note an appeal following the imposition of sentence in
August 2005. However, he noted an appeal after the initial denial of his motion for a sentence
reduction. That appeal was dismissed in August 2009. ECF 364. Yet, the Motion was not filed
until June 9, 2014.
Fed. R. App. P. 4(b)(1)(A)(i) provides: “In a criminal case, a defendant's notice of appeal
must be filed in the district court within 14 days after the . . . the entry of either the judgment or
the order being appealed . . . .”; see also Fed. R. Crim. P. 45(a); Clay v. United States, 537 U.S.
522, 524–25 (2003).
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A motion under 28 U.S.C. § 2255 is generally subject to a one-year statute of limitations.
See 28 U.S.C. § 2255(f). Under § 2255(f), the limitations period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
Notably, Descamps was decided on June 20, 2013. Royal was decided on October 1,
2013. Edmonds’ Motion was filed within one year of the decision in Descamps. Therefore,
Edmonds argues that his Petition is timely under § 2255(f)(3), because he filed his Petition
within one year of the Supreme Court’s decision in Descamps, which in his view established a
newly recognized right that applies retroactively. ECF 407 at 2.
The government maintains that Descamps did not recognize a new right or rule. ECF 448
at 5.
Rather, it claims that in Descamps the Supreme Court “merely applied an existing
principle.” Id. (collecting cases). Therefore, according to the government, Edmonds’ Motion is
untimely. Id. at 4.
The Supreme Court stated in Teague v. Lane, 489 U.S. 288 (1989), that a “new rule” is
one that “breaks new ground or imposes a new obligation on the States or the Federal
Government.” Id. at 301. In other words, “‘[a] case announces a new rule if the result was
not dictated by precedent existing at the time the defendant's conviction became final.’” Welch
v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1264 (2016) (quoting Teague, 489 U.S. at 301)
(emphasis in Teague).
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Applying this definition, the Supreme Court did not establish a new rule in Descamps.
Rather, it “simply [reaffirmed] the Taylor/Shepard approach, which some courts had
misconstrued.” United States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014). Indeed, the Supreme
Court itself recognized in Descamps that it was relying on existing precedent. Descamps, 570
U.S. at 260 (“Our caselaw explaining the categorical approach and its ‘modified’ counterpart all
but resolves this case.”); see also United States v. Morgan, 845 F.3d 664, 668 (5th Cir. 2017)
(“Descamps clearly relies on existing precedent. The Court explicitly says so and spends nearly
the whole opinion explaining that viewpoint.).
Indeed, many courts have considered the question of whether the Supreme Court
recognized a new right in Descamps, and have concluded that Descamps merely reiterated an
existing principle.
See, e.g., Morgan, 845 F.3d at 667 (“We agree with our sister courts
that Descamps did not establish a new rule.”); Mays v. United States, 817 F.3d 728, 734 (11th
Cir. 2016) (“Descamps did not announce a new rule—its holding merely clarified existing
precedent.”); Headbird v. United States, 813 F.3d 1092, 1097 (8th Cir. 2016) (“We agree with
other circuits that the decision in Descamps was dictated by the general principles set forth in
existing precedent and did not establish a new rule.”); Ezell v. United States, 778 F.3d 762, 766
(9th Cir.) (“Descamps clarified application of the modified categorical approach in light of
existing precedent.”), cert. denied, ___ U.S. ___, 136 S. Ct. 256 (2015); King v. United States,
610 Fed. App'x 825, 828 (11th Cir.) (“As for Descamps, it is not a new rule. It merely applied
prior precedent . . . .”), cert. denied, 136 S. Ct. 349 (2015); United States v. Hopson, 589 Fed.
App'x 417 (10th Cir. 2015) (“Descamps did not recognize a new right, but rather applied existing
doctrine.”); Davis, 751 F.3d at 775 (“The Supreme Court in Descamps explained that it was not
announcing a new rule . . . .”); United States v. Williams, No. 3:05-CR-173, 2016 WL 7155748,
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at *4 (E.D. Va. Dec. 7, 2016) (“‘[T]he decision in Descamps was dictated by the general
principles set forth in existing precedent and did not establish a new rule.’”) (quoting Headbird,
813 F.3d at 1097) (alteration in Williams); Scott v. United States, RDB-08-0034, 2016 WL
3162766, at *3 (D. Md. June 7, 2016) (recognizing that Descamps does not recognize a new right
or apply retroactively on review); United States v. Owens, 3:05-CR-264-HEH, 2016 WL
1562917, at *2 (E.D. Va. Apr. 15, 2016) (“Descamps . . . is not a new right that triggers the
belated commencement provision of 28 U.S.C. § 2255(f)(3).”), reconsideration denied, No.
3:05-CR-264-HEH, 2016 WL 5019163 (E.D. Va. Sept. 16, 2016).
Because Descamps relied on existing precedent and did not recognize a “new rule,”
Edmonds cannot rely on § 2255(f)(3). Accordingly, his Petition was untimely filed and is thus
barred under § 2255(f).6
Even if the Motion were timely filed, this would not result in a ruling favorable to
Edmonds. Although not squarely on point, Beckles v. United States, __ U.S. __, 137 S. Ct. 886
(2017), is informative. In Beckles, the Court determined that the advisory sentencing guidelines
are not subject to challenges under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2251
(2015). As the Beckles Court stated, “the advisory Guidelines do not fix the permissible range of
sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” Id. at 892.
Moreover, Edmonds was not sentenced as a career offender. The government urged
Judge Motz to impose a sentence at the bottom of the guidelines for a non-career offender, as the
parties had contemplated. Therefore, it recommended a sentence of 168 months. Judge Motz
6
In light of this disposition, I need not address the government’s other contentions,
including that a challenge to the career offender designation is not cognizable under § 2255. See,
e.g., Foote, 784 F.3d at 932; United States v. Powell, 691 F.3d 554, 563 (4th Cir. 2012).
9
imposed an even lower sentence. He sentenced Edmonds to 162 months. The career offender
guidelines called for a range of 262 to 327 months.
III. Certificate of Appealability
Unless a certificate of appealabilty (“COA”) is issued, a petitioner may not appeal the
court's decision in a § 2255 proceeding. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b).7 A COA
may issue only if the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner “must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274. 282 (2004) (citation and internal quotation marks omitted), or that “the
issues presented are adequate to deserve encouragement to proceed further,” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Petitioner has not made a substantial showing of the denial of his constitutional rights.
Therefore, this court will not issue a COA.
An Order follows.
Date: September 30, 2018
/s/
Ellen L. Hollander
United States District Judge
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The denial of a COA does not preclude a petitioner from seeking permission from the
appellate court for a COA.
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