McBride v. USA

Filing 7

ORDER granting 6 Motion to Stay Petitioner's Motion to Vacate, and this matter is hereby held in abeyance pending the Fourth Circuit's decision in United States v. Brown, No. 16-7056 (4th Cir.). Thereafter, the government shall have 45 days from the date the Fourth Circuit decides Brown within which to file its response in this matter. Signed by District Judge Martin Reidinger on 6/30/2017. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00201-MR
CRIMINAL CASE NO. 1:00-cr-00069-MR-3

GEORGE McBRIDE,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
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Respondent.
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________________________________ )

ORDER

THIS MATTER is before the Court on the motion of the United States
requesting that the Court enter an order again holding this action in abeyance
nunc pro tunc. [CV Doc. 6].1 According to the government’s motion, defense
counsel does not object to its request. [Id.].
Petitioner was found guilty of conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. [CR Doc.
112]. The presentence report noted that Petitioner had two prior qualifying
convictions that triggered the Career Offender enhancement under § 4B1.2

1

Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting the document is listed on the docket in the
civil case file number 1:16-cv-00201-MR, or the letters “CR” denoting the document is
listed on the docket in the criminal case file number 1:00-cr-00069-MR-3.

of the Sentencing Guidelines: (1) a 1987 California conviction for involuntary
manslaughter; and (2) a 1993 California conviction for discharge of a firearm
with gross negligence. The Court sentenced Petitioner as a Career Offender
to a term of life imprisonment. [Id.].
On June 23, 2016, Petitioner commenced this action by filing a petition
pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, Petitioner
contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015),
his prior California convictions for discharge of a firearm with gross
negligence and involuntary manslaughter no longer qualify as “crimes of
violence” under the Guidelines. [Id. at 3-4]. Consequently, Petitioner argues
his Career Offender designation is improper and thus his sentence is
unlawful. [Id.].
In response to the petition, the government filed a motion to hold this
proceeding in abeyance pending the Supreme Court’s decision in Beckles v.
United States, 616 Fed. Appx. 415 (11th Cir.), cert. granted, 2016 WL
1029080 (U.S. June 27, 2016) (No. 15-8544). [CV Doc. 3]. One of the
questions presented in Beckles was whether Johnson applies retroactively
to cases collaterally challenging federal sentences enhanced under the
residual clause in U.S.S.G. § 4B1.2(a)(2). The residual clause invalidated in
Johnson is identical to the residual clause in the Career Offender provision
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of the Guidelines, § 4B1.2(a)(2) (defining "crime of violence"). This Court
granted the government’s motion and held this matter in abeyance pending
the Beckles decision. The government was granted sixty (60) days after the
Beckles decision to file a response to Petitioner’s motion to vacate. [CV Doc.
4].
On March 6, 2017, the Supreme Court issued its decision in Beckles,
holding that “the advisory [Sentencing] Guidelines are not subject to
vagueness challenges under the Due Process Clause” and that Johnson,
therefore, does not apply to invalidate the residual clause of the careeroffender Guideline. 137 S. Ct. 886, 890, 895 (2017). In the wake of Beckles,
Petitioner filed a supplemental brief in support of his motion to vacate, in
which he argues that Beckles does not resolve his claim for relief because
he was sentenced when the Sentencing Guidelines were mandatory, rather
than advisory. [CV Doc. 5 at 1].
The government contends that the Fourth Circuit has heard oral
argument in United States v. Brown, No. 16-7056 (4th Cir.), in which the
defendant has argued that his career-offender sentence should be vacated
under Johnson because he was classified as a career offender based on the
residual clause of the career-offender guideline when the Guidelines were
mandatory. The government argues that the Fourth Circuit’s decision in
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Brown may be dispositive of Petitioner’s claim for relief under Johnson. Even
if not dispositive of Petitioner’s entire claim, the government argues, the
Brown decision will be dispositive of certain of the legal issues posed by
Petitioner’s motion to vacate.
Based upon the reasons given by the government, and without
objection by Petitioner, the Court concludes that the government’s motion
should be granted.
ORDER
IT IS, THEREFORE, ORDERED that the government’s motion to place
this case in abeyance nunc pro tunc [CV Doc. 6], is hereby GRANTED and
this matter is hereby held in abeyance pending the Fourth Circuit’s decision
in United States v. Brown, No. 16-7056 (4th Cir.).

Thereafter, the

government shall have 45 days from the date the Fourth Circuit decides
Brown within which to file its response in this matter.
IT IS SO ORDERED.

Signed: June 30, 2017

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