Shipley v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA). Certificate of Appealability is denied (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JUSTIN THOMAS SHIPLEY,
Movant,
vs.
No. CV 16-00667 KG/SCY
No. CR 14-02446 KG
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court under Rule 4 of the Rules Governing Section 2255
Proceedings on the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody filed June 23, 2016, by Movant Justin Thomas Shipley (CV Doc. 1;
CR Doc. 82) (the “Motion”). Movant Shipley seeks relief based on the United States Supreme
Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). This Court determines that
Shipley is clearly ineligible for relief under Johnson and will dismiss the Motion.
Shipley was charged in Count I for violating 21 U.S.C. § 846, conspiracy to possess with
intent to distribute a mixture and substance containing a detectable amount of methamphetamine
contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count II for violating 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C), possession with intent to distribute 50 grams and more of a mixture and substance
containing methamphetamine; and Count III for violating 18 U.S.C. § 924(c), using, carrying and
possession of a firearm during and in relation to and in furtherance of a drug trafficking crime.
(CR Doc. 26). Shipley pled guilty to all three counts pursuant to a plea agreement that included
a stipulation under Rule 11(c)(1)(C) to a term of imprisonment of eight (8) years. (CR Doc. 53
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at ¶¶ 3, 12). Accordingly, Shipley was sentenced to 96 months (8 years) of imprisonment
followed by three years of supervised release.1 (CR Doc. 76).
In his Motion, Shipley relies on Johnson to argue he should not have received an
enhanced sentence under 18 U.S.C. § 924(c). Shipley further argues that his convictions for
conspiracy to possess with intent to distribute a mixture and substance containing a detectable
amount of methamphetamine and possession with intent to distribute 50 grams and more of a
mixture and substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) no longer constitute crimes of violence under the residual clause of § 924(c). (CV Doc.
2; CR Doc. 84).
Shipley seeks collateral review of his sentence under 28 U.S.C. § 2255. Section 2255
provides:
A prisoner in custody under a 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). Shipley seeks collateral review in reliance on a right newly recognized by
the Supreme Court in Johnson and made retroactively applicable to cases on collateral review.
See 28 U.S.C. § 2255(f)(3).
In Johnson, the Supreme Court held that the residual clause of the Armed Career
Criminal Act (“ACCA”) is impermissibly vague and an increased sentence imposed under the
residual clause of 18 U.S.C. § 924(e)(2)(B) violates the Constitution’s guarantee of due process.
135 S.Ct. at 2562-2563. Under the ACCA, a defendant convicted of being a felon in possession
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The sentence imposed specified 36 months for Count I and Count II to run concurrently, and 60 months
for Count III to run consecutively for a total of 96 months.
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of a firearm faces more severe punishment if he has three or more previous convictions for a
“violent felony.” 18 U.S.C. § 924 (e)(2)(B). The Act defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year . . . that—
(i) 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)(2)(B) (emphasis added). The Johnson Court struck down the italicized
residual clause language of § 924(e)(2)(B)(ii), as unconstitutionally vague. 135 S.Ct. at 2555-63.
The language of § 924(e)(2)(B)(i), which defines “violent felony” as a crime that “has as an
element the use, attempted use, or threatened use of physical force,” is commonly referred to as
the “element” or “force” clause. The “enumerated” clause is the language of § 924(e)(2)(B)(ii)
that lists the crimes of burglary, arson, extortion, or the use of explosives as violent felonies.
The Supreme Court expressly stated that its holding with respect to the residual clause does not
call into question the four enumerated offenses or the remainder of the definition of a violent
felony in § 924(e)(2)(B). 135 S.Ct. at 2563. Therefore, the Johnson decision has no application
to sentences enhanced under the force or element clause of § 924(e)(2)(B)(i), or the enumerated
clause of § 924(e)(2)(B)(ii).
Shipley’s sentence was not enhanced under § 924(e)(2)(B), of the ACCA. Instead,
Shipley argues that the Johnson ruling should be applied to the residual clause of 18 U.S.C. §
924(c). The question of whether Johnson applies to invalidate the residual clause language of §
924(c)(3)(B), is an unsettled question. In Johnson, the Supreme Court indicated that its ruling
did not place the language of statutory provisions like the § 924(c)(3)(B), residual clause in
constitutional doubt. 135 S.Ct. at 2561. The lower courts have divided on the question of
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application of the Johnson ruling to § 924(c) and similarly-worded provisions. See United States
v. Taylor, 814 F.3d 340, 375-79 (4th Cir. 2016) (declining to find § 924(c) void for vagueness);
United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015) (finding language similar to §
924(c) void for vagueness); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding
similar language in Immigration and Nationality Act void); In re Smith, ___ F.3d ___, 2016 WL
3895243 at *2-*3 (11th Cir. 2016) (noting issue but not deciding it in context of application for
permission to file second or successive § 2255 motion). The question of whether the Johnson
holding applies to the residual clause of § 924(c)(3)(B) is presently pending before the Tenth
Circuit in United States v. Hopper, 10th Cir. No. 15-2190.
Although the question may remain unsettled, this Court need not determine in this case
whether Johnson should apply to invalidate the residual clause of § 924(c)(3)(B). Even if
Johnson was extended to § 924(c), the residual clause definition of “crime of violence” is not
applicable to Shipley’s drug convictions. Shipley's underlying convictions, upon which his §
924(c) conviction was based, were not “crimes of violence” as contemplated in § 924(c)(3)(B). 2
Instead, Shipley was convicted of conspiracy to possess with intent to distribute a mixture and
substance containing a detectable amount of methamphetamine, contrary to 21 U.S.C. §§
841(a)(1), and (b)(1)(C), and possession with intent to distribute 50 grams and more of a mixture
and substance containing methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1), and (b)(1)(C).
These convictions qualify as “drug trafficking crimes” as provided in § 924(c)(2), and the §
924(c)(3)(B) “crime of violence” analysis has no bearing on Shipley’s sentence.
If Johnson impacts § 924(c) at all it would only serve to invalidate the residual clause in
the crime of violence portion § 924(c)(3)(B). The drug trafficking portion of § 924(c)(2) does
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There is also a question as to whether Shipley waived the right to raise the Johnson issue on collateral
review under his Plea Agreement. However, because the Court concludes that Shipley would not be eligible for
resentencing, the Court does not reach the waiver issue.
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not have a residual clause, and states with particularity which charges serve as underlying crimes
for a § 924(c) conviction. The predicate crimes for purposes of § 924(c)(2) include Shipley’s
offenses under 21 U.S.C. §§ 841 and 846. Therefore, the Supreme Court's holding in Johnson
has no effect on convictions for § 924(c) based on drug trafficking crimes. Because Shipley's
§ 924(c) conviction rests on drug trafficking crimes, he is not entitled to relief under Johnson.
Under 28 U.S.C. § 2253(c)(1) and (3), the Court determines that Shipley has not made a
substantial showing of denial of a constitutional right.
Therefore, the Court will deny a
certificate of appealability. See Rule 11(a) of the Rules Governing Section 2255 Proceedings.
IT IS ORDERED that the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody filed June 23, 2016, by Movant Justin Thomas
Shipley (CV Doc. 1; CR Doc. 82) is DISMISSED under Rule 4(b) of the Rules Governing
Section 2255 Proceedings, and a Certificate of Appealability is DENIED under Rule 11(a).
_______________________________
UNITED STATES DISTRICT JUDGE
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