SMART-EL v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 2/27/2015. (drw)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
JASON EMANUEL SMART-EL,
Civ. No. 13-164 (NLH)
Jason Emanuel Smart-El, #41627-050
FCI Butner II
P.O. Box 1500
Butner, NC 27509
Petitioner, pro se
Jason M. Richardson
Office of the U.S. Attorney
Camden Federal Building
401 Market Street
P.O. Box 1427
Camden, NJ 08101
For Defendant United States of America
HILLMAN, District Judge
Petitioner Jason Emanuel Smart-El, a prisoner currently
confined at the Federal Correctional Institution II at Butner,
North Carolina, has submitted a Motion to Vacate, Set Aside or
Correct Sentence pursuant to § 2255.
For the reasons set forth
below, the Court will grant the Motion, vacate the prior
judgment and set the matter down for a resentencing hearing
under the Fair Sentencing Act of 2010.
The parties and the Court are familiar with the factual
context and legal history of this case; therefore, they need not
be repeated in detail here.
The Court will set forth only those
facts necessary to the analysis of the within habeas petition.
Petitioner was arrested on July 8, 2008, and on September
23, 2009, he pled guilty to a two-count Superseding Information
charging him with Possession with Intent to Distribute five
grams or more of crack cocaine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B) (Count One), and Possession of a Firearm
by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1)
This Court held a sentencing hearing on August 13, 2010.
The Probation Office applied the career offender enhancement
pursuant to U.S.S.G. § 4B1.1 and calculated Petitioner’s base
offense level to be a 34, and his criminal history to be
After a 3-level downward adjustment for acceptance
of responsibility, Petitioner faced an advisory guideline
sentencing range of 188 to 235 months.
Count One carried a
mandatory minimum term of five years and maximum of 40 years,
while Count Two carried a maximum of 10 years. Probation and
Petitioner was sentenced to a total term of imprisonment of 198
On August 24, 2010, Petitioner filed a timely notice of
appeal, alleging that his within-Guideline-range sentence was
unreasonable because the District Court improperly weighed
certain § 3553(a) factors and failed to give sufficient weight
On February 11, 2011, the Third Circuit Court of
Appeals affirmed the District Court’s sentence. U.S. v. SmartEl, 412 F. App’x 551 (3d Cir. 2011).
On December 26, 2012, Petitioner submitted the motion
presently before the Court.
Petitioner argues that his sentence
should be vacated because the District Court failed to apply the
Fair Sentencing Act of 2010 (“FSA”) to his case as required by
the Supreme Court’s ruling in Dorsey v. United States, 132 S.Ct.
In an Answer filed December 12, 2013, Respondents concede
that, pursuant to Dorsey, the FSA’s more lenient statutory
maximums should have been applied to Petitioner’s case.
Respondents request that the Court grant Petitioner’s motion,
vacate the prior judgment, and order Petitioner to be resentenced under the statutory maximum as revised by the FSA.
STANDARD OF REVIEW
Title 28 U.S.C. § 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a). See generally U.S. v. Thomas, 713 F.3d 165
(3d Cir. 2013) (detailing the legislative history of § 2255).
A petitioner challenging a sentence under § 2255 must bring
a motion within one year from:
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
28 U.S.C. § 2255(f)(3).
A criminal defendant bears the burden of establishing his
entitlement to § 2255 relief. See United States v. Davies, 394
F.3d 182, 189 (3d Cir. 2005).
Moreover, as a § 2255 motion to
vacate is a collateral attack on a sentence, a criminal
defendant “must clear a significantly higher hurdle than would
exist on direct appeal.” United States v. Frady, 456 U.S. 152,
166 (1982), cited in U.S. v. Travillion, No. 12–4184, 2014 WL
3029837, *2 (3d Cir. 2014).
Finally, this Court notes its duty to construe pro se
pleadings liberally. See United States v. Otero, 502 F.3d 331,
334 (3d Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520
A. Sentence in Violation of Dorsey v. United States, 132 S.Ct.
Petitioner argues that he was improperly sentenced in light
of the Supreme Court’s ruling in Dorsey, which was issued on
July 21, 2012. Dorsey, 132 S.Ct. 2321.
Petitioner’s motion is
dated December 26, 2012 and was filed on January 9, 2013. Thus,
the Petition is timely as within the one-year statute of
limitations imposed by § 2255(f)(3).
In Dorsey, the Supreme Court addressed the timing issue
created when a defendant’s crime occurs prior to the enactment
of the FSA but his sentencing takes place after the enactment
Ultimately, the Supreme Court concluded that the FSA does
apply to those defendants whose crimes pre-date the FSA, but
whose sentencing occurs after the enactment date. Dorsey, 132
S.Ct. 2321 at 2331. (“Congress intended the Fair Sentencing
Act's more lenient penalties to apply to those offenders whose
crimes preceded August 3, 2010, but who are sentenced after that
In this case, Petitioner’s crime and subsequent conviction
occurred prior to August 3, 2010, but he was not sentenced until
after that date.
Thus, pursuant to Dorsey, the FSA revised
statutory maximum penalties should have been applied to his
case. See Dorsey, 132 S.Ct. 2321; see also U.S. v. Mark, 533 F.
App’x 83, 87 (3d Cir. 2013) (“[T]he [Fair Sentencing Act]
requires application of the new mandatory minimum sentencing
provisions to all defendants sentenced on or after August 3,
2010, regardless of when the offense conduct occurred.”)
(quoting United States v. Dixon, 648 F.3d 195, 198 (3d Cir.
Because this Court declined to apply the FSA, an
improper statutory maximum penalty for the underlying offense
was used to calculate his base offense level under the career
criminal guidelines (U.S.S.G. § 4B1.1).
Accordingly, the prior
sentence is vacated and Petitioner will be re-sentenced under
the Fair Sentencing Act.
B. Ineffective Assistance of Counsel
Petitioner also alleges ineffective assistance of counsel
as grounds for his § 2255 Motion.
Specifically, he asserts that
his counsel failed to understand the Career Offender Guidelines
in relation to the Fair Sentencing Act.
He does not seek
additional relief with respect to this claim.
In light of the
fact that this Court grants his Motion on the grounds discussed
above, this claim is moot.
For the foregoing reasons, the Motion is granted.
Petitioner’s sentence is vacated.
A date for resentencing in
accordance with the Fair Sentencing Act will be set in the Order
accompanying this Opinion.
___s/ Noel L. Hillman___
NOEL L. HILLMAN
United States District Judge
Dated: February 27, 2015
At Camden, New Jersey
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