Harris v. USA

Filing 3

MEMORANDUM: For the reasons discussed above, the motion to vacate will be denied. Further, Harris has failed to make a substantial showing of the denial of a constitutional right, which requires a demonstration that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right. Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of appealability. Signed by District Judge Carol E. Jackson on 2/23/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CURTIS L. HARRIS,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

No. 4:17-CV-293 CEJ

MEMORANDUM
Before the Court is the motion of defendant Curtis L. Harris to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. In his motion, Harris
seeks relief based on the decision of the United States Supreme Court in Johnson v.
United States, 135 S.Ct. 2551 (2015).
In Johnson, the Court held the “residual clause” of the Armed Career Criminal
Act (“the ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.

The

ACCA enhances the punishment for firearms offenses under 18 U.S.C. § 922(g)
when the defendant has at least three prior convictions for a serious drug offense
or a “violent felony.”

The term “violent felony” is defined in the ACCA as felony

offense that “(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or (ii) is burglary, arson, or extortion,
involves the use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(B)

(emphasis added). The “otherwise involves” language of the ACCA is the residual
clause that the Supreme Court found unconstitutional. Johnson, 135 S.Ct. at 2563.
In the instant case, Harris pleaded guilty to conspiracy to possess with intent
to distribute phencyclidine (PCP). See United States v. Harris, No. 4:15CR135-1
(E.D.Mo.).

He was sentenced as a career offender under § 4B1.1(a) of the

Sentencing Guidelines to a 151-month term of imprisonment.

Section 4B1.1(a)

provides that a defendant is a career offender if (1) he was at least 18 years old
when he committed the offense of conviction; (2) the offense of conviction is either
a crime of violence or a controlled substance offense; and (3) he has at least two
prior felony convictions for
offense.

either a crime of violence or a controlled substance

The definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b)

includes a felony offense involving the distribution or possession with intent to
distribute a controlled substance.

With one minor exception, the term “crime of

violence” in U.S.S.G. § 4B1.2(a) is defined in the same way as it is defined in the
ACCA.1 Moreover, the guideline and the statute contain identical residual clauses.
Harris was found to be a career offender based on his two prior felony
convictions for controlled substance offenses: possession of a controlled substance
with intent to deliver and conspiracy to distribute more than 50 grams of cocaine
base.

In Johnson, the Supreme Court left intact the ACCA’s enhanced penalty

where the defendant’s predicate offenses involved the distribution of or the
possession with intent to distribute a controlled substance. Because Harris’s status
as a career offender was not predicated on a prior conviction for a crime of

The statute and the guideline differ in that the ACCA lists “burglary” as a predicate
offense while the career offender guideline lists “burglary of a dwelling” as a predicate
offense.
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violence, the residual clause of U.S.S.G. § 4B1.2(a) is not implicated and he is not
entitled to relief under Johnson.
For the reasons discussed above, the motion to vacate will be denied.
Further, Harris has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right.”

Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002)

(quotation omitted). Thus, the Court will not issue a certificate of appealability. 28
U.S.C. § 2253(c).

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of February, 2017.

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