Miller v. USA

Filing 5

ORDER granting 4 Motion to Stay. This matter is held in abeyance pending Supreme Court's decision in Beckles. Thereafter, Respondent has 60 days from date of Supreme Court decision to file a response to petr's 2255 motion to vacate. Signed by District Judge Richard Voorhees on 10/7/2016. (cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-112-RLV
(5:02-cr-5-RLV-6)

JACKIE LEE MILLER, JR.,

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

ORDER

THIS MATTER is before the Court upon Respondent’s motion to stay this action and
hold it in abeyance. (Doc. 3.) Petitioner is represented by the Federal Defenders of Western
North Carolina.
On September 26, 2002, Petitioner pled guilty to Conspiracy to Possess with Intent to
Distribute, and Distribute, Cocaine, Cocaine Base, and Marijuana. The presentence investigative
report found that Petitioner had two qualifying prior convictions that triggered the careeroffender enhancement under United States Sentencing Guidelines § 4B1.2: a 1994 North
Carolina conviction for assault on a government official, and two 1995 North Carolina
convictions for possession with intent to sell and deliver cocaine that count as a single predicate
offense. On May 5, 2003, this Court imposed an enhanced sentence of 210 months in prison.
(Motion to Vacate 1-2, Doc. No. 1.)
On June 20, 2016, Petitioner commenced this action by filing a motion to vacate pursuant
to 28 U.S.C. § 2255. (Doc. No. 1.) Petitioner challenges the Court’s application of the careeroffender provision in determining his advisory guideline range. That provision applies to

1

defendants who, among other things, have “at least two prior felony convictions of either a crime
of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Petitioner contends that his
conviction for assault on a government official is not a “crime of violence” under the Guidelines
in the light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
On August 12, 2016, Respondent filed the instant motion to stay and hold these
proceedings in abeyance pending the United States Supreme Court’s decision in Beckles v.
United States, No. 15-8544. (Doc. No. 3.) According to Respondent, Beckles presents three
questions that are relevant to, or dispositive of, Petitioner’s Motion: (1) whether Johnson’s
constitutional holding applies to the residual clause of the definition of “crime of violence” in the
career-offender guideline; (2) if so, whether Johnson’s invalidation of the residual clause of the
career-offender guideline applies retroactively on collateral review; and (3) whether possession
of a sawed-off shotgun, an offense listed as a “crime of violence” in the commentary of the
career-offender guideline, remains a crime of violence after Johnson.
Respondent states that counsel for Petitioner consents to the motion to stay. 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 stay (Doc. No. 3) is
GRANTED. This matter is held in abeyance pending the Supreme Court’s decision in Beckles.
Thereafter, Respondent shall have 60 days from the date the Supreme Court decides Beckles to
file a response to Petitioner’s § 2255 motion to vacate.
Signed: October 7, 2016

2