Sisk v. USA

Filing 10

ORDER granting 9 Motion to Stay, and this matter is hereby held in abeyance pending the Fourth Circuit's decision in United States v. Brown, No. 16-7056 (4th Cir.). The Petitioner shall have 14 days from the issuance of the mandate in Brown within which to file a reply brief 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-00208-MR
CRIMINAL CASE NO. 1:01-CR-00052-MR-14

ROBERT LIONEL SISK,

)
)
Petitioner,
)
)
vs.
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)
UNITED STATES OF AMERICA,
)
)
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 habeas action in
abeyance. [CV Doc. 9].1

According to the Petitioner’s motion, the

government does not object to his request. [Id.].
Petitioner was found guilty of conspiracy to possess with intent to
distribute cocaine and methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 846. [CR Doc. 307]. The presentence report noted that
Petitioner had two prior qualifying convictions that triggered the Career

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-00208-MR, or the letters “CR” denoting the document is
listed on the docket in the criminal case file number 1:01-CR-00052-MR-14.

Offender enhancement under section 4B1.2 of the Sentencing Guidelines:
two North Carolina convictions for assault on a female, one in 1988 and the
other in 1989. The Court sentenced Petitioner as a Career Offender to a
term of imprisonment of 276 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 two prior convictions under North Carolina law for assault on a female 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. 5]. 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
of the Guidelines, § 4B1.2(a)(2) (defining "crime of violence"). This Court
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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.
6].
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. 7 at 1]. The government in turn filed a response
opposing the Petitioner’s motion to vacate and his supplemental response.
[CV Doc. 8].
The Petitioner contends that the Fourth Circuit will soon hear 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
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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. 9], 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.). The Petitioner shall have 14 days
from the issuance of the mandate in Brown within which to file a reply brief
in this matter.
IT IS SO ORDERED.

Signed: May 12, 2017

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