Jenkins v. USA

Filing 8

ORDER that the Petitioner' 7 motion to place this case in abeyance is hereby GRANTED and this matter is hereby held in abeyance pending the Fourth Circuit's decision in United States v. Brown. The Petitioner shall have 14 days from the date the Fourth Circuit issues the mandate in Brown within which to file a reply in this matter. Signed by District Judge Martin Reidinger on 5/12/2017. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00202-MR
CRIMINAL CASE NO. 1:02-cr-00105-MR-DLH-4

MICHAEL ANTHONY JENKINS,

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

ORDER

THIS MATTER is before the Court on the Petitioner’s motion
requesting that the Court enter an order again holding this action in
abeyance.

[CV Doc. 7].1

According to the Petitioner’s motion, the

government does not object to his request. [Id.].
Petitioner pleaded guilty to conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
brandishing a firearm in relation to a drug trafficking crime and aiding and

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-00202-MR, or the letters “CR” denoting the document is
listed on the docket in the criminal case file number 1:02-cr-00105-MR-DLH-4.

abetting the same, in violation of 18 U.S.C. §§ 924(c)(1) and 2. [CR Doc.
292]. The presentence report noted that Petitioner had at least two prior
qualifying convictions that triggered the Career Offender enhancement under
§ 4B1.2 of the Sentencing Guidelines: (1) a 1993 North Carolina conviction
for possession with intent to sell/deliver cocaine and sale and delivery of
cocaine (two counts, consolidated for sentence); and (2) a 1993 North
Carolina conviction for assault on a female. The Court sentenced Petitioner
as a Career Offender to a total term of 292 months. [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 North Carolina conviction for assault on a female no longer qualifies
as a “crime 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
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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
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 filed a response to the
Petitioner’s motion to vacate on May 5, 2017. [CV Doc. 6].
The Petitioner now moves to stay this case again. For grounds, he
contends that the Fourth Circuit will soon hear oral argument in United States
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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 careeroffender guideline when the Guidelines were mandatory. The Petitioner
argues that the Fourth Circuit’s decision in Brown may be dispositive of his
claim for relief under Johnson.
Based upon the reasons given by the Petitioner, and without objection
by the government, the Court concludes that the Petitioner’s motion should
be granted.
ORDER
IT IS, THEREFORE, ORDERED that the Petitioner’s motion to place
this case in abeyance [CV Doc. 7], 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 Petitioner shall have
14 days from the date the Fourth Circuit issues the mandate in Brown within
which to file a reply in this matter.
IT IS SO ORDERED.

Signed: May 12, 2017

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