Houston v. USA

Filing 4

ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 9/7/2017. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00562-FDW
(3:11-cr-00408-FDW-1)
LAVANDUS HOUSTON,

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

ORDER

THIS MATTER is before the Court upon Petitioner Lavandus Houston’s pro se Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1.)
I.

BACKGROUND

On February 4, 2013, Houston entered a guilty plea to conspiracy to distribute and to
possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,
841(b)(1)(B) (Count One). Acceptance and Entry of Guilty Plea, Doc. No. 129.1 As part of
Houston’s plea agreement, the government dismissed another charge2 and the parties agreed on
the amount of controlled substance known to, or reasonably foreseeable by, Houston. Plea Agr.
¶ 7a, Doc. No. 128. The parties also agreed that the cross-reference to second-degree murder
under United States Sentencing Guideline (“U.S.S.G.”) § 2D1.l(d)(l) applied. Id. at ¶ 7c.
Prior to sentencing, a federal probation officer calculated Houston’s adjusted offense
level and criminal history category. Presentence Investigation Report (“PSR”), Doc. No. 167.

1

Unless otherwise indicated, all docket references that are not in parentheses refer to documents in the underlying
criminal action. Docket references in parentheses refer to documents in the instant habeas action.
2

Houston was charged with using and carrying a firearm during and in relation to a drug trafficking crime, causing
the death of a person through use of the firearm, and aiding and abetting the same, in violation of 18 U.S.C. §§
924(c)(l)(A), 924(j)(l), and 2 (Count 2). Superseding Indict., Doc. No. 115.

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Houston’s adjusted offense level was based on the quantity of drugs attributable to him, PSR ¶
47 (citing U.S.S.G. §2D1.1 (2013)), the second-degree murder cross-reference, id. at ¶ 49 (citing
U.S.S.G. §§ 2A1.2, 2D1.l(d)(l) (2013), and reductions for acceptance of responsibility, id. at ¶¶
55-56 (citing §3E1.1 (2013)). The Court sentenced Petitioner to 210 months in prison, followed
by a period of supervised release. J., Doc. No. 184. Judgment was entered on May 5, 2014. Id.
The Fourth Circuit Court of Appeals dismissed Houston’s direct appeal on March 4, 2015.
Order, Doc. No. 225.
In the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255(f)(3), Houston asserts that under the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015), made retroactive to cases on collateral review, Welch v. United States,
136 S. Ct. 1257 (2016), he no longer qualifies as a career offender under the Sentencing
Guidelines. (Mot. 2, Doc. No. 1.) He argues that the Court erred in enhancing his sentence
under the career offender guidelines, and that his sentence violates the Due Process Clause of the
United States Consitution. (Mot. 2.)
II.

STANDARD OF REVIEW

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United
States District Court, sentencing courts are directed to examine motions to vacate, along with
“any attached exhibits and the record of prior proceedings” in order to determine whether a
petitioner is entitled to any relief. If it plainly appears that the petitioner is not entitled to relief,
the court must dismiss the motion. See id. After conducting its initial review, the Court finds
that the claims presented in the Motion to Vacate can be resolved based on the record and
governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III.

DISCUSSION

In Johnson v. United States, the Supreme Court held that part of the Armed Career
2

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague under the Due Process
Clause of the Fifth Amendment. 135 S. Ct. at 2558. The ACCA provides for a mandatory
minimum sentence of 15 years in prison for a defendant convicted of being a felon in possession
of a firearm, 18 U.S.C. § 922(g), if the defendant has at least three prior convictions for serious
drug offenses or violent felonies. See § 924(e)(1).
Houston was not convicted of being a felon in possession of a firearm, in violation of §
922(g). Thus, his sentence was not enhanced under the ACCA. He contends, however, that the
holding in Johnson extends to the Sentencing Guidelines, particularly career offender guidelines
4B1.1 and 4B1.2. (Mot. 2-3.) Under the career offender guidelines, a defendant’s sentence may
be increased if:
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.
§ 4B1.1(a) (2013).
Houston’s argument is foreclosed by the Supreme Court’s decision in Beckles v. United
States, 137 S. Ct. 886 (2017). In Beckles, the Supreme Court held that the Johnson decision does
not apply to the advisory Sentencing Guidelines. Id.
Furthermore, contrary to his assertions, Houston was not sentenced as a career offender.
Indeed, the probation officer determined that Houston was not eligible for a sentence
enhancement under the career offender guidelines. PSR ¶ 54 (“Chapter Four Enhancement:
None.”). As noted, Houston’s adjusted offense level was determined based upon the quantity of
drugs attributable to him and a cross-reference to second degree murder. It was not adjusted in
any way based upon Houston’s prior criminal convictions. In short, the holding in Johnson has
no bearing on Houston’s sentence, and he is not entitled to relief.
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IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence (Doc. No. 1) is
DISMISSED; and

2.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings in the
United States District Courts, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322,
338 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when
relief is denied on procedural grounds, a petitioner must establish both that the
dispositive procedural ruling is debatable and that the petition states a debatable
claim of the denial of a constitutional right).
Date Signed: September7 , 2017

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