VAUGHN v. UNITED STATES OF AMERICA
OPINION. Signed by Judge William J. Martini on 7/20/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(Civ. No. 16-3608) (WJM)
(Crim. No. 14-616) (WJM)
Hon. William J. Martini
UNITED STATES OF AMERICA,
This matter comes before the Court on pro se Petitioner Naeem Vaughn’s
motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
Vaughn challenges his sentence on the following three grounds. First, his prior
conviction for aggravated assault does not qualify as a “crime of violence” for the
purpose of setting his Base Offense Level, because the United States Sentencing
Guidelines (the “Guidelines”) implement the same “residual clause” deemed
unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015).
Second, Vaughn received ineffective assistance of counsel because his lawyer failed
to make a certain Brady challenge regarding the application of a 2-level
enhancement under 2K2.1(b)(4)(a). Third, the Court incorrectly applied a 4-level
enhancement under sentencing guideline § 2K2.1(b)(6)(B) (using a firearm in
connection with another felony). There was no oral argument. For the reasons stated
below, Vaughn’s § 2255 motion is DISMISSED WITH PREJUDICE and the
relief requested therein is DENIED.
A. Criminal Offense and Sentencing
On May 7, 2014, Petitioner Naeem Vaughn was arrested by Newark Police
Department Officers who were conducting a routine patrol of Stephen Crane Plaza.
Two officers saw Vaughn pick up a firearm and begin running in the opposite
direction. While fleeing Vaughn parted ways with the firearm, later identified as a
.40 caliber HiPoint Smith & Wesson. When he eventually submitted to arrest,
Vaughn was found to be in possession of 30 “baggies” of crack cocaine.
On January 21, 2015, Vaughn pleaded guilty to possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). There was
no plea agreement. At sentencing, the Court adopted the Government’s finding of
an offense level of 27, with an advisory guideline range of 100-120 months. See
Sentencing Transcript (“Tr.”) 21:3-7, Docket No. 14-cr-616, ECF No. 20. The
offense level was predicated on a 2-level enhancement for use of a stolen firearm, §
2K2.1(b)(4)(A), and a 4-level enhancement for use of a firearm “in connection with
another felony offense,” § 2K2.1(b)(6)(B), namely possession of cocaine with intent
to distribute. Vaughn’s attorney argued that the prosecutor failed to establish that
the gun was in fact stolen or that the drugs were intended for distribution rather than
for personal use. Tr. 7-9. The Court disagreed and found, based on a preponderance
of the evidence, that both enhancements would apply. Tr. 21:3-5. After considering
the factors set forth in 18 U.S.C. § 3553(a), the Court departed downward to offense
level 24 and sentenced Vaughn to a term of 78 months. Tr. 32-33. Vaughn now
resides at USP Allenwood in Allenwood, Pennsylvania. Docket No. 16-cv-616,
ECF No. 1.
B. The Instant Motion under 28 U.S.C. § 2255
Vaughn has filed a pro se § 2255 motion seeking to vacate or modify his
sentence on three grounds. First, Vaughn claims that the residual clause in Guideline
§ 2K2.1(a)(1) is unconstitutionally void for vagueness pursuant to Johnson v. United
States, 135 S. Ct. 2551 (2015). Second, Vaughn asserts that his right to effective
counsel was violated because his counsel failed to challenge under Brady v.
Maryland the Court’s application of a 2-level enhancement under 2K2.1(b)(a).
Lastly, Vaughn argues that the government failed to establish that Vaughn used the
firearm while in possession with intent to distribute drugs, a finding which led to a
4-level enhancement under 2K2.1(b)(6)(B). The motion is timely under 28 U.S.C.
STANDARD OF REVIEW
Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a
sentence “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.” 28 U.S.C. § 2255(a).
A hearing is not required for § 2255 motion where “the files and records of the case
conclusively show that the prisoner is entitled to no relief.” United States v. Padilla–
Castro, 426 F. App’x 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b)); accord
United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “[A]n error of law does not
provide a basis for collateral attack unless the claimed error constituted a
fundamental defect which inherently results in a complete miscarriage of justice.”
United States v. Addonizio, 442 U.S. 178 (1979) (internal quotations omitted).
1. The Residual Clause under Guideline 2K2.1(a)(2)
Petitioner Vaughn argues that his prior conviction for aggravated assault
cannot qualify him for enhancement as a “crime of violence” under the “residual
clause” of § 2K2.1(a)(2)1 in light of Johnson, 135 S. Ct. at 2563. The Supreme Court
in Johnson struck down an identical residual clause of the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague. 135 S. Ct. at 2563.2
That holding applies retroactively pursuant to Welch v. United States, 136 S. Ct.
1257, 1268 (2016). Vaughn’s challenge nonetheless fails because the Supreme
Court has since held that the Federal Sentencing Guidelines are not susceptible to
challenges under the void-for-vagueness doctrine delineated in Johnson. Beckles v.
United States, 137 S. Ct. 886, 896 (2017). Accordingly, Johnson provides no basis
for relief from the Court’s application of U.S.S.G. § 2K2.1(a)(2). Vaughn’s prior
conviction for aggravated assault was properly treated as a “crime of violence”
under the advisory Guidelines when the Court set a Base Offense Level of 24.
2. Ineffective Assistance of Counsel
The Sixth Amendment guarantees criminal defendants the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To
demonstrate ineffective assistance of counsel, Vaughn must satisfy the two-part test
outlined in Strickland. Id. at 687. First, he must show that his attorney’s
representation was not “within the range of competence demanded of attorneys in
criminal cases.” Id. Second, he must show “prejudice.” Hill v. Lockhart, 474 U.S.
52, 56 (1985); Strickland, 466 U.S. at 687. Vaughn fails to satisfy either part of the
United States Sentencing Guideline § 2K2.1(a)(2) specifies a Base Offense Level of 24
“if the defendant committed any part of the instant offense subsequent to sustaining at
least two felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. 2K2.1(a)(2). Application note 1 of § 2K2.1 states that “crime of
violence” has the same meaning given to that phrase under 4B 1.2(a), which is virtually
identical to the residual clause in the ACCA that was struck down by Johnson. See infra
ACCA’s “residual clause” is contained in its definition of “violent felony,” which
includes, inter alia, “burglary, arson , or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B).
Vaughn broadly asserts that counsel failed to argue that the 2-level
enhancement under § 2K2.1(B)(a) is inapplicable because the government failed to
establish that the gun was stolen. He argues that the government violated Brady v.
Maryland by withholding a National Crime Information Center report which
reflected no record of the weapon being lost or stolen. 373 U.S. 83 (1963). In fact,
Vaughn’s counsel did make this argument at sentencing. Tr. 7:24-8:3.
Notwithstanding counsel’s diligent efforts, the Court found by a preponderance of
the evidence that the firearm was stolen. Tr. 19:14-25. Counsel’s performance was
clearly “within the range of competence demanded of attorneys in criminal cases.”
Strickland, 466 U.S. at 687.
3. Four-Level Enhancement under § 2K2.1(b)(6)(B).
The Guidelines provide for a 4-level increase for possession of a firearm with
“intent . . . that it would be used or possessed in connection with another felony
offense.” § 2K2.1(b)(6)(B). The Court found sufficient evidence that Vaughn
possessed the firearm while also in possession with intent to distribute cocaine. Tr.
20-21. Vaughn argues that the 4-point enhancement should not have applied
because the government failed to show by a preponderance of the evidence that
Vaughn intended to sell or distribute the drugs rather than use them for personal
consumption. As the sentencing transcript suggests, the Court thoroughly
considered and rejected this argument.3 The Court finds no defect in the 4-level
increase applied under 2K2.1(b)(6)(B).
For the above reasons, Petitioner’s 28 U.S.C. § 2255 motion is DENIED and
DISMISSED WITH PREJUDICE. An appropriate order follows.
/s/ William J Martini
WILLIAM J. MARTINI, U.S.D.J.
July 20, 2017
For instance, the fact that Vaughn possessed 30 individual “baggies” of cocaine and
more than $300 in cash suggested he was not simply using cocaine, but intending to
distribute it. Tr. 20.
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