Lord v. USA
///ORDER denying 1 Motion to Vacate Sentence - 2255. The court declines to issue a certificate of appealability because the plaintiff has not made a substantial showing of the denial of a constitutional right, as is required under 28 U.S.C. § 2253(c)(2). The clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-071-JD
Opinion No. 2017 DNH 129
United States of America
O R D E R
Eric Lord, proceeding pro se, moved under 28 U.S.C. § 2255
to vacate his sentence for bank robbery on grounds arising from
his designation as a career offender under the United States
Counsel was appointed to represent Lord.
The government has filed its response to Lord’s motion for
§ 2255 relief, and Lord has responded.
Lord pleaded guilty to one charge of bank robbery.
the terms of the plea agreement, the government and Lord agreed
to a recommended sentence of 120 months.
Lord was deemed to be a career offender, which elevated his
offense level for sentencing, based on two prior felony
convictions of robbery in 2003 and burglary in 2009.
robbery occurred when Lord grabbed a woman’s pocketbook in a
store parking lot.
The 2009 burglary conviction arose from two
incidents when Lord unlawfully entered different residences in
Jaffrey, New Hampshire.
During the sentencing hearing, the court noted that under
the sentencing guidelines the sentencing range was 151 to 188
Because of Lord’s background and the circumstances of
the crime, however, the court accepted the recommended sentence
of 120 months.
Judgment was entered on February 17, 2015.
did not appeal his sentence.
Lord brings three claims in support of relief under § 2255.
Lord agrees with the government that his first claim is now
precluded by Beckles v. United States, 137 S. Ct. 886 (2017).
In his second claim, Lord contends that the career offender
designation in his case was a fundamental miscarriage of
In his third claim, he contends that the court
violated his right to due process by not making findings as to
whether his 2003 robbery conviction and 2009 burglary conviction
were crimes of violence within the meaning of the USSG.
government contends that neither claim has merit.
“Section 2255 contemplates four potential bases on which a
federal prisoner may obtain relief:
(1) ‘that the sentence was
imposed in violation of the Constitution or laws of the United
States’; (2) ‘that the court was without jurisdiction to impose
such sentence’; (3) ‘that the sentence was in excess of the
maximum authorized by law’; or (4) that the sentence ‘is
otherwise subject to collateral attack.’”
Damon v. United
States, 732 F.3d 1, 3 (1st Cir. 2013) (quoting § 2255(a)).
sentence is “otherwise subject to collateral attack” only if
errors occurred “that reveal ‘fundamental defect[s]’ which, if
uncorrected, will ‘result in a complete miscarriage of
justice,’ or irregularities that are ‘inconsistent with the
rudimentary demands of fair procedure.’”
David v. United
States, 134 F.3d 470, 474 (1st Cir. 1998) (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)).
is on the petitioner.”
“The burden of proof
Wilder v. United States, 806 F.3d 653,
658 (1st Cir. 2015).
Application of Career Offender Designation
The government notes that an unresolved issue exists among
circuit courts as to whether an error in applying the Guidelines
can support relief under § 2255.
See Damon, 732 F.3d at 4-5.
In addition, Lord did not appeal his sentence, which results in
procedural default that can be overcome only by showing cause
and prejudice for the default or a miscarriage of justice.
Bousley v. United States, 523 U.S. 614, 622 (1998).
asserts that the application of the career offender designation
to him resulted in a fundamental miscarriage of justice, not
merely a misapplication of the Guidelines.
See Cuevas v. United
States, 778 F.3d 276, 271-72 (1st Cir. 2015).
acknowledges Lord’s constitutional challenge and does not
challenge the claim on procedural grounds.
In his motion for relief under § 2255, Lord alleges that
the career offender designation doubles the length of the
sentence for an average defendant.
He further alleges that in
his case the career offender designation caused the Guidelines
range to increase from 70 to 87 months up to a range of 151 to
188 months, which caused him to accept the 120-month sentence
offered in the plea agreement.
He claims that both of his
predicate offenses would be questionable predicates, noting that
the Guidelines definition of burglary was amended in 2016.
Lord analogizes his claim to the circumstances in Cuevas,
where the defendant’s career offender predicate offenses were
vacated after the defendant was sentenced.
778 F.3d at 268.
The court held that Cuevas’s claim, based on the subsequent
invalidity of his predicate convictions, was an exceptional
circumstance that was cognizable under the fourth prong of §
Id. at 271-72.
Cuevas’s case was remanded for
Id. at 276.
Lord’s predicate convictions have not been vacated and
Lord argues instead that his burglary conviction
no longer meets the definition of a crime of violence under
§ 4B1.2(a)(2), based on the 2016 amendment.1
The amendment of
the Guidelines does not present the exceptional case that the
court recognized in Cuevas.
See also Tosi v. United States,
2016 WL 5107078, at *3-*4 (D. Me. Sept. 20, 2016).
Lord cannot seek relief based on the analysis in Cuevas.
Lord also argues that the 2016 amendment to § 4B1.2(a)(2)
makes his sentence a miscarriage of justice.
In 2015, the
Supreme Court held that the residual clause of the definition of
violent felony in the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(2)(B), was unconstitutionally vague so that
sentences imposed based on the residual clause violated due
Johnson v. United States, 135 S. Ct. 2551, 2557-63
The Sentencing Commission then amended the definition
of a crime of violence used in determining career offender
designation under the Guidelines by removing the residual clause
and burglary from the definition.
United States v. Johnson, 665
F. App’x 788, 791 (11th Cir. 2016); United States v. Childers,
2017 WL 2559858, at *6 (D. Me. June 13, 2017).
The 2016 amendment to § 4B1.2(a) was not made retroactive
and cannot be applied retroactively.
United States v. McCalop,
To the extent Lord also challenges the use of his 2003
robbery conviction as a predicate offense, he provides no
developed argument to support that theory.
--- F. App’x ---, 2017 WL 2645544, at *2 (11th Cir. June 20,
2017); Daniels v. United States, 2017 WL 2623873, at *1, n.1
(E.D. Wisc. June 16, 2017); United States v. Dandridge, 2016 WL
6638019, at *1, n.2 (W.D. Va. Nov. 8, 2016).
In addition, the
Supreme Court held in Beckles that “the Guidelines are not
subject to a vagueness challenge under the Due Process Clause.”
137 S. Ct. at 892.
As a result, the pre-amendment version of
§ 4B1.2, which included the residual clause, as well as
burglary, as part of the definition of a crime of violence, was
Childers, 2017 WL 2559858, at *6.
Lord has not shown
any miscarriage of justice arising from his sentencing under the
pre-amendment version of § 4B1.2.
Relying on Mathis v. United States, 136 S. Ct. 2243, 2251
(2016), Lord contends that his burglary conviction could not be
used as a predicate offense for career offender designation
because the definition of burglary under New Hampshire law is
broader than the generic definition used in the Guidelines.
Lord acknowledges, however, Mathis applies to the ACCA, not the
See Davis v. United States, 2017 WL 2571568, at *3
(S.D. Ill. June 14, 2017); United States v. Williams, 2017 WL
2464096, at *2 (M.D. Fla. June 7, 2017); United States v. Birko,
2017 WL 2362850, at *1 (N.D. Fla. May 31, 2017); Smith v. United
States, 2017 WL 1393059, at *1 (S.D. Ga. Apr. 11, 2017).
As is stated above, Lord bears the burden of showing that
he is entitled to relief under § 2255.
Lord makes no argument
to show that the holding in Mathis would also apply to § 4B1.2,
despite the analysis in Beckles and, therefore, has not carried
See United States v. Carter, --- F.3d ---, 2017 WL
2685489, at *4 (1st Cir. June 22, 2017); Coons v. Indus. Knife
Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010).
because the pre-amendment residual clause of § 4B1.2, which
applied to Lord, is valid, the burglary conviction would
constitute a crime of violence under the residual clause, even
if Mathis applied to burglary as used in the pre-amendment
version of § 4B1.2.
See Edwards v. United States, 2017 WL
2023649, at *5 (E.D. Tenn. May 11, 2017); Pendleton v. United
States, 2017 WL 1164947, at *2 (S.D. Ill. Mar. 29, 2017).
For the foregoing reason, the plaintiff’s motion for relief
under § 2255 (document no. 1) is denied.
The court declines to issue a certificate of appealability
because the plaintiff has not made a substantial showing of the
denial of a constitutional right, as is required under 28 U.S.C.
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
June 27, 2017
Donald A. Kennedy, Esq.
Seth R. Aframe, Esq.
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