Pratt v. United States of America

Filing 5

MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge Judith C. Herrera dismissing with prejudice Defendants Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence, denying all pending motions as moot; and denying a certificate of appealability. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. 16-CV-00754-JCH-KK
No. 08-CR-01369-JCH

ROBERT IRWIN PRATT,
Defendant.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts, on Defendant Robert Irwin Pratt’s Motion
Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody. [CV Doc. 1; CR Doc. 140] Defendant contends that his sentence unlawfully was
enhanced under the career-offender provision of the United States Sentencing Guidelines
(U.S.S.G.), § 4B1.1, based on the United States Supreme Court’s ruling in Johnson v. United
States, 135 S. Ct. 2551 (2015). [CV Doc. 1 at 4; CR Doc. 140] The Court concludes that
Defendant’s § 2255 motion was timely filed under the prison mailbox rule, but nonetheless
concludes that Defendant is not entitled to relief because his sentence was enhanced based on two
prior felony convictions for “controlled substance offense[s],” U.S.S.G. § 4B1.2(b), rather than
under the residual clause definition of a “crime of violence,” U.S.S.G. § 4B1.2(a). Therefore,
Defendant’s § 2255 motion will be dismissed with prejudice, all pending motions will be denied as
moot, a certificate of appealability will be denied, and judgment will be entered.

On June 18, 2008, Defendant was charged in a two-count Indictment with: (1) Count
1—conspiracy to possess 50 grams and more of a mixture and substance containing
methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846; and (2) Count
2—possession with intent to distribute 50 grams and more of a mixture containing
methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. [CR Doc.
28] On August 18, 2009, the Government notified Defendant, pursuant to 21 U.S.C. § 851, that it
intended to use Defendant’s prior felony convictions in “Albuquerque District Court case number
D-202-CR-99-1485 with consolidated cases D-202-CR-99-3002 and D-202-CR-99-3688 . . . to
apply the enhanced penalty provisions of Title 21, United States Code, Section 841(b)(1)(B).”
[CR Doc. 86] See 21 U.S.C. § 841(b)(1)(B) (providing that a person convicted of certain drug
offenses “after a prior conviction for a felony drug offense has become final . . . shall be sentenced
to a term of imprisonment which may not be less than 10 years and not more than life
imprisonment”).

Defendant and the Government entered into a plea agreement, whereby

Defendant agreed to plead guilty to Counts 1 and 2 of the Indictment and the Government agreed
to recommend a sentence of 144 months of imprisonment pursuant to Fed. R. Crim P. 11(c)(1)(B).
[CR Doc. 89]
The Probation Office prepared a Presentence Investigation Report (PSR), which
determined that the base offense level for the offenses of conviction was 32 under U.S.S.G. §
2D1.1(c). [PSR at 10] The base offense level was increased to 34, because Defendant was a
career offender under U.S.S.G. § 4B1.1 in light of the following two prior felony offenses:
Trafficking (by Manufacture) (Methamphetamine), Second Judicial
District Court, Albuquerque, New Mexico; Case No. CR 99-01485
Trafficking (by Manufacture) (Methamphetamine), Second Judicial
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District Court, Albuquerque, New Mexico; Case No. CR 99-03002
[PSR at 11]

Defendant’s offense level was decreased by two points for acceptance of

responsibility under U.S.S.G. § 3E1.1(a) and decreased by one additional point for acceptance of
responsibility under U.S.S.G. § 3E1.1(b), resulting in a total offense level of 31. [PSR at 11]
Based on Defendant’s criminal history points and U.S.S.G. § 4B1.1(b), Defendant’s criminal
history category was determined to be VI. [PSR at 26] A total offense level of 31 and a criminal
history category of VI resulted in an imprisonment range of 188 to 235 months under the U.S.S.G.
[PSR at 34]
On December 1, 2009, the Court accepted Defendant’s guilty plea and the plea agreement,
adopted the findings in the PSR, and sentenced Defendant to the custody of the United States
Bureau of Prisons to be imprisoned for a term of 144 months as to each Counts 1 and 2 of the
Indictment, said terms to run concurrently, for a total term of 144 months of imprisonment. [CR
Doc. 112, 117] Additionally, the Court imposed a term of supervised release of 8 years as to each
Counts 1 and 2 of the Indictment, said terms to run concurrently, for a total term of 8 years of
supervised release. [CR Doc. 117] The Court rendered judgment on Defendant’s conviction and
sentence on December 4, 2009. [CR Doc. 117] No appeal was filed and, therefore, Defendant’s
conviction became final fourteen days after the entry of judgment. See United States v. Prows,
448 F.3d 1223, 1227-28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal
conviction becomes final upon the expiration of the time in which to take a direct criminal
appeal.”); Fed. R. App. Proc. 4(b)(1)(A)(i) (“In a criminal case, a defendant’s notice of appeal
must be filed in the district court within 14 days after. . . the entry of . . . the judgment . . .”).
As a preliminary matter, the Court will address whether Defendant’s § 2255 motion was

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timely filed under § 2255(f), which imposes a one-year statute of limitation on § 2255 motions.
See United States v. DeClerk, 252 F. App’x 220, 224 (10th Cir. 2007) (noting that “federal district
courts are permitted, but not obliged, to consider, sua sponte, the timeliness” of a § 2255 motion)
(internal quotation marks and citation omitted; unpublished).

Because Defendant seeks

sentencing relief under Johnson, the timeliness of his motion is governed by § 2255(f)(3), which
provides that the one-year statute of limitation begins to run on “the date on which 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 review.” § 2255(f)(3);
see also Dodd v. United States, 545 U.S. 353, 357 (2005) (holding that a § 2255 “applicant has one
year from the date on which the right he asserts was initially recognized by this Court” to file a §
2255 motion”). Johnson was decided on June 26, 2015 and, therefore, Defendant had one year
from that date, or until June 27, 2016, to file his § 2255 motion.1 Defendant’s § 2255 motion is
dated June 24, 2016—three days before the expiration of the one-year deadline. [CV Doc. 1 at 13
and 17; CR Doc. 140 at 13 and 17] However, the motion was not received by the Court and filed
on the docket until June 29, 2016—two days after the expiration of the one-year deadline. Thus,
the timeliness of Defendant’s § 2255 motion depends on the application of the prison mailbox rule.
Pursuant to the prison mailbox rule, a prisoner’s mailing “will be considered timely if
given to prison officials for mailing prior to the filing deadline, regardless of when the court itself
receives the documents.” Price v. Philpot, 420 F.3d 1158, 1164 (10th Cir. 2005). “However, the

1

Because June 26, 2016 was a Sunday, a day on which the Clerk’s Office was inaccessible, the one-year deadline was
extended to Monday, June 27, 2016. See Fed. R. Civ. P. 6(a)(3)(A) (“Unless the court orders otherwise, if the clerk’s
office is inaccessible . . . on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first
accessible day that is not a Saturday, Sunday, or a legal holiday); see also United States v. Hurst, 322 F.3d 1256, 1261
(10th Cir. 2003) (holding that “calculation issues concerning AEDPA statutes of limitations should be resolved under
the principles expressed in Rule 6(a)).

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inmate must attest that such a timely filing was made and has the burden of proof on this issue.”
Id. at 1165. An inmate may establish a timely filing under the prison mailbox rule in one of two
ways:
(1) alleging and proving that he or she made timely use of the
prison’s legal mail system if a satisfactory system is available, or (2)
if a legal system is not available, then by timely use of the prison’s
regular mail system in combination with a notarized statement or a
declaration under penalty of perjury of the date on which the
documents were given to prison authorities and attesting that
postage was prepaid.
Id. at 1166; see also 28 U.S.C. § 1746 (setting forth the requirements for unsworn declarations
under penalty of perjury).
Defendant’s § 2255 motion includes the following “CERTIFICATE OF SERVICE”:
I hereby certify that on this Date I have made and served a true and
correct copy of this Petition for Review and Resentencing Pursuant
to Johnson v. United States, under Title 28 U.S.C. section 2255 on
the Clerk for the District Court, using the inmate filing and mail
system (mailbox rule) Houston v. Lack, 101 L.Ed 2d 245 (1988) by
placing the same in a postage prepaid, first class, sealed envelope
and deposited same at the Federal Prison Camp La Tuna, P.O. Box
8000 Anthony Texas, 88021.
I declare under penalty of perjury pursuant to the laws of the United
States, Title 28 U.S.C. § 1746 that the foregoing is true and correct.
Date: __June 24, 2016__________
[CV Doc. 1 at 17; CR Doc. 140 at 17] The Court concludes that Defendant’s § 2255 motion was
timely filed under the prison mailbox rule because it was placed in the prison mailing system prior
to the expiration of the one-year deadline and it includes a declaration, signed under penalty of
perjury, attesting the date on which the motion was given to prison authorities for mailing and that
postage was first-class prepaid.
Having determined that Defendant’s § 2255 motion was timely filed, the Court next
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considers whether Defendant is entitled to sentencing relief under Johnson. In Johnson, the
United States Supreme Court considered whether the residual clause of the Armed Career
Criminal Act (ACCA) violates the due process clause of the United States Constitution. In
general, the maximum term of imprisonment for a defendant convicted of being a felon in
possession of a firearm is ten years. See 18 U.S.C. § 924(a)(2). “But if the violator has three or
more earlier convictions for a ‘serious drug offense’ or a ‘violent felony,’ the Armed Career
Criminal Act increases his prison term to a minimum of 15 years and a maximum of life.”
Johnson, 135 S.Ct. at 2555 (quoting § 924(e)(1)). The ACCA defines a “violent felony” as
follows:
any crime punishable by imprisonment for a term exceeding one
year . . . that—
(i) has 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 use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another
§ 924(e)(2)(B) (emphasis added). The Court held that the residual clause of § 924(e)(2)(B)(ii),
which is the italicized portion excerpted above, “denies fair notice to defendants and invites
arbitrary enforcement by judges.” Johnson, 135 S. Ct. at 2557. Therefore, “imposing an
increased sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process.” Id. at 2563. The United States Supreme Court has
determined that Johnson’s holding is retroactively applicable to cases on collateral review. See
Welch v. United States, 136 S. Ct. 1257 (2016).
In the present case, Defendant’s sentence was not enhanced under the ACCA, but under the
career-offender provision in U.S.S.G. § 4B1.1, which contains a residual clause virtually identical
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to the one invalidated in Johnson. See U.S.S.G. § 4B1.2 (defining a “crime of violence” as “any
offense under federal or state law, punishable by imprisonment for a term exceeding one year,
that-- (1) has an element the use, attempted use, or threatened use of physical force against the
person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical injury
to another.” (emphasis added)). In United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir.
2015), the United States Court of Appeals for the Tenth Circuit held that “[t]he concerns about
judicial inconsistency that motivated the Court in Johnson, lead us to conclude that the residual
clause of the Guidelines is also unconstitutionally vague. If one iteration of the clause is
unconstitutionally vague, so too is the other.”2
Notably, pursuant to Johnson and Madrid, only the residual clause of the ACCA and the
career-offender provision of the U.S.S.G., both of which define a “violent felony” or a “crime of
violence,” respectively, as a felony that “otherwise involves conduct that presents a serious
potential risk of physical injury to another,” are unconstitutionally vague. See 18 U.S.C. §
924(e)(2)(B); U.S.S.G. § 4B1.2(a)(2). However, Defendant’s sentence was not enhanced on the
basis of the definition of a “crime of violence” in the U.S.S.G., much less under the residual clause
of that definition. Rather, Defendant’s sentence was enhanced because he had two prior felony
convictions of “a controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled substance
offense” is defined as “an offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing
2

The United States Court of Appeals for the Tenth Circuit has not yet determined whether Johnson applies
retroactively on collateral review to the residual clause definition of a “crime of violence” in the U.S.S.G. That
question currently is pending before the United States Supreme Court in Beckles v. United States, No. 15-854. The
Court need not determine whether Johnson applies retroactively to the U.S.S.G., because Defendant’s sentence was
not enhanced under the U.S.S.G. for a “crime of violence.”

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of a controlled substance (or a counterfeit substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b). Neither Johnson nor Madrid invalidated the definition of a “serious drug
offense” under the ACCA, see 18 U.S.C. § 924(e)(2)(A), or the definition of a “controlled
substance offense” under the career-offender provision of the U.S.S.G., see U.S.S.G. § 4B1.2(b).
See United States v. Turner, 624 F. App’x 624, 626 (10th Cir. 2015) (holding that Johnson was
inapplicable to the defendant’s § 2255 motion, because the defendant “was convicted under §
924(e)(1) based on three earlier convictions for ‘serious drug offense[s] under § 924(e)(2)(A)”)
(unpublished). On the basis of the foregoing, the Court concludes that Defendant plainly is not
entitled to relief on his § 2255 motion. Therefore, his § 2255 motion will be dismissed with
prejudice, all pending motions will be denied as moot, and judgment will be entered.
The Court further determines, under rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, that Defendant has failed to make a substantial
showing that he has been denied a constitutional right as required by 28 U.S.C. § 2253(c)(2).
Accordingly, the Court will deny a certificate of appealability.
IT IS THEREFORE ORDERED that Defendant’s Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody [CV Doc. 1; CR Doc.
140] is DISMISSED with prejudice; all pending motions are DENIED as moot; a certificate of
appealability is DENIED; and judgment will be entered.

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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