Danner v. USA

Filing 5

ORDER granting Respondent's 4 motion to hold Petitioners § 2255 Motion to Vacate in abeyance. The above-captioned action is held in abeyance pending the Supreme Courts decision in Beckles v. United States, No. 15- 8544. Respondent shall have 60 days from the date the Supreme Court issues its decision in Beckles to file an answer, motion, or other response to Petitioners § 2255 Motion to Vacate. Signed by District Judge Richard Voorhees on 12/15/2016. (kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-98-RLV
(5:00-cr-15-RLV-2)
JEREMY RAY DANNER,

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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 upon Respondent’s unopposed motion to hold this
action in abeyance. (Doc. 4.) Petitioner is represented by the Federal Defenders of Western
North Carolina. According to Respondent’s motion, counsel for Petitioner does not object to the
request. (Id. at 2.)
On September 15, 2000, Petitioner pled guilty to Conspiracy to Possess with Intent to
Distribute, and Distribute, Cocaine, Cocaine Base, and Heroin, 21 U.S.C. §§ 841(a)(1) and 846.
The presentence report found that Petitioner had two qualifying prior convictions that triggered
the career-offender enhancement under U.S.S.G. § 4B1.2: a 1993 North Carolina conviction for
breaking and entering, and a 1997 North Carolina conviction for possession with intent to deliver
cocaine. (Mot. to Vacate 1-2, Doc. No. 1.)
On June 14, 2016, Petitioner commenced this action by filing a Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. He challenges the enhancement of his
sentence under the career-offender guideline in U.S.S.G. § 4B1.2. Petitioner argues that his prior
North Carolina conviction for breaking and entering no longer qualifies as a career-offender
predicate in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
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(2015). Johnson held that “imposing an increased sentence under the residual clause of the
Armed Career Criminal Act violates the Constitution’s guarantee of due process” but did not
address the residual clause under the career-offender guideline. Id., 135 S. Ct. at 2563.
On December 13, 2016, Respondent filed the instant motion to hold these proceedings in
abeyance pending the United States Supreme Court’s decision in Beckles v. United States, No.
15-8544. (Doc. No. 4.) According to Respondent, Beckles presents questions that are relevant
to, or dispositive of, Petitioner’s Motion, including: whether Johnson’s constitutional holding
applies to the residual clause of the definition of “crime of violence” in the career-offender
guideline, and, if so, whether Johnson’s invalidation of the residual clause of the career-offender
guideline applies retroactively on collateral review.
For the reasons stated by Respondent, and without objection from Petitioner, the Court
concludes that the motion should be granted.
IT IS, THEREFORE, ORDERED that Respondent’s motion to hold Petitioner’s § 2255
Motion to Vacate in abeyance (Doc. No. 4) is GRANTED.
IT IS FURTHER ORDERED that the above-captioned action is held in abeyance
pending the Supreme Court’s decision in Beckles v. United States, No. 15-8544. Respondent
shall have 60 days from the date the Supreme Court issues its decision in Beckles to file an
answer, motion, or other response to Petitioner’s § 2255 Motion to Vacate.

Signed: December 15, 2016

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