THOMAS v. USA
Filing
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MEMORANDUM OPINION re Motion to Vacate/Set Aside/Correct Sentence (2255) filed by LAMAR CHARLES THOMAS. Signed by Chief Judge Joy Flowers Conti on 12/12/16. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAMAR CHARLES THOMAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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) CIVIL NO. 16-1009
) CRIMINAL NO. 05-205
) CRIMINAL NO. 07-227
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MEMORANDUM OPINION
CONTI, Chief District Judge.
Pending before the court is a motion to vacate, set aside, or correct sentence by a person
in federal custody pursuant to 28 U.S.C. § 2255 (the “Motion”) (ECF No. 587)1 filed by
petitioner Lamar Charles Thomas (“petitioner” or “Thomas”). 2 After reviewing the Motion and
the brief in opposition filed by the United States of America (the “government”) (ECF No. 592),
the court will deny the Motion for the reasons set forth below.
I. Background
On September 16, 2009, Thomas pleaded guilty in this court to Counts 1 through 6 of the
Superseding Indictment at Criminal Action No. 05-205 (“Superseding Indictment”) and to Count
1 of the Indictment at Criminal Action No. 07-227 (“Indictment”) (ECF Nos. 239 (Superseding
The docket references (“ECF No.”) in this opinion are references to the docket in the criminal
case, Criminal No. 05-205, unless otherwise noted.
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Petitioner filed an identical motion at Criminal Action No. 07-227. (ECF No. 88.)
Indictment), 443 (Guilty Plea), 445 (Judgment); Criminal Action No. 07-277 ECF Nos. 31
(Superseding Indictment), 83 (Guilty Plea), 84 (Judgment).) These charges included four charges
of conspiracy, pursuant to 21 U.S.C. §§ 841 and 846 (Superseding Indictment Counts 1-4), one
charge for possession of a firearm in furtherance of a drug trafficking crime, pursuant to 18
U.S.C. § 924(c) (Superseding Indictment Count 5), one charge for unlawful possession of a
machine gun, pursuant to 18 U.S.C. § 922 (Superseding Indictment Count 6), and one charge of
for receipt of a firearm while under indictment (Indictment Count 1). (ECF No. 239; Criminal
Action No. 07-277 ECF No. 31.)
With respect to Count 5 of the Superseding Indictment, which is the charge at issue in
the instant Motion, Thomas pleaded guilty to possessing a firearm in violation 18 U.S.C. §§
924(c)(1)(A)(i).3 Specifically, Thomas possessed a firearm in furtherance of the conspiracy to
distribute and possess with the intent to distribute fifty grams or more of cocaine base, in the
form commonly known as crack, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) and
846, as charged in Count 1 of the Superseding Indictment and in furtherance of the conspiracy to
distribute and possess with the intent to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(b)(ii) and 846, as charged in Count 2 of the Superseding
Indictment. (ECF Nos. 239, 443, 445.)
At the sentencing hearing, this court determined that Thomas was subject to the
enhancement set forth in § 924(c)(1)(A)(i), which triggered a 60-month mandatory minimum
sentence of imprisonment to be served consecutively to the punishment imposed for the
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Count 5 of the Superseding Indictment charged Thomas with possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(B)(ii). Section
924(c)(1)(B)(ii) mandates a 30-year minimum term of imprisonment if the firearm “is a machinegun or a
destructive device, or is equipped with a firearm silencer or firearm muffler.” 18 U.S.C. §
924(c)(1)(B)(ii). Both parties stipulated at sentencing that the firearm possessed in furtherance of a drug
trafficking crime, as charged at Count 5, was not a machine gun. (ECF No. 444 at 5.)
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underlying drug trafficking crime. § 924(c)(1)(A)(i). The court sentenced Thomas to 120
months’ imprisonment at Counts 1 through 4 and 6 of the Superseding Indictment and to 60
months’ imprisonment at Count 1 of the Indictment, all those sentences to be concurrently
served. Defendant was also sentenced to 60 months’ imprisonment at Count Five of the
Superseding Indictment, to be served consecutively to the other terms of imprisonment imposed.
(ECF No. 445.) His total term of imprisonment was 180 months. Had § 924(c)(1)(A)(i) not
applied to Thomas, he would not have been subject to the additional mandatory consecutive 60month term of imprisonment and could have instead concurrently served all terms.
On July 1, 2016, Thomas filed, pro se, the instant Motion. (ECF No. 587.) In the Motion,
Thomas alleges that his sentencing enhancement under 18 U.S.C. § 924(c)(1)(A)(i) should be
overturned in light of the Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551
(2015), and Welch v. United States, 136 S. Ct. 1257 (2016). (Id.)
On October 7, 2016, the government filed a response in opposition, arguing that Johnson
has no application to Thomas’s sentence, as Thomas was convicted and sentenced for a drug
trafficking crime, not for a crime of violence. (ECF No. 592.)
II. Standard of Review
A district court is required to hold an evidentiary hearing on a motion to vacate sentence
filed pursuant to 28 U.S.C. § 2255 unless the motion, files, and records of the case show
conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255(b) (“Unless the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief,
the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.”); United States v. Booth, 432 F.3d 542, 545-46 (3d
Cir. 2005).
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Under 28 U.S.C. § 2255(a), a federal prisoner in custody may move the court which
imposed the sentence to vacate, set aside, or correct the sentence
upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.
28 U.S.C. § 2255(a).
In Hill v. United States, 368 U.S. 424 (1967), the Supreme Court of the United States
read the statute as providing four grounds upon which relief can be granted:
(1) “that the sentence was imposed in violation of the Constitution
or laws of the United States;” (2) “that the court was without
jurisdiction to impose such sentence;” (3) “that the sentence was in
excess of the maximum authorized by law;” and (4) that the
sentence “is otherwise subject to collateral attack.”
Hill, 368 U.S. at 426–27. As a remedy, the statute provides that if a sentence was imposed in
violation of law, “the court shall vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the sentence as may appear
appropriate.” 28 U.S.C. § 2255(b).
Petitioner bears the positive burden of proving that he is entitled to relief under 28 U.S.C.
§ 2255. United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). The general rule in habeas
cases is that the petitioner must show that his conviction is illegal. United States v. Hollis, 569
F.2d 199, 206 (3d Cir. 1977). It well settled that to obtain relief, a prisoner must clear a
significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S.
152, 166 (1982). As a collateral challenge, a motion pursuant to § 2255 is reviewed much less
favorably then a direct appeal of the sentence. United States v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014). Indeed, relief under § 2255 is available only when the claimed error of law was a
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fundamental defect which inherently results in the complete miscarriage of justice and presents
exceptional circumstances where the need for the remedy is apparent. Id. (citing Davis v. United
States, 417 U.S. 333, 346 (1974)).
III. Analysis
In the Motion, petitioner argues that he is entitled to post-judgment relief under 28 U.S.C.
§ 2255 based upon the Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551
(2015) and Welch v. United States, 136 S. Ct. 1257 (2016). (ECF No. 587.) In Johnson, the
Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) defining
“violent felony” was unconstitutionally vague and, that consequently, “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s
guarantee of due process.” Johnson, 135 S. Ct. at 2563. In Welch, the Supreme Court determined
that its decision in Johnson retroactively applies. Welch, 136 S. Ct. 1257 at 1265.
Although Thomas was not sentenced under the ACCA, he asks the court to apply the
reasoning of Johnson to the enhancement applied to his sentence under 18 U.S.C. § 924(c).4 The
Third Circuit Court of Appeals addressed an almost identical request in United States v. Parnell,
652 F. App’x 117 (2016). In Parnell, the court recognized that Johnson struck down the residual
clause in the ACCA for vagueness, and that the definition of “crime of violence” in § 924(c)
may likewise be unconstitutionally vague because it contains language “similar to the residual
Section 924(c)(1)(A) imposes a five-year sentencing enhancement for “any person who, during and in
relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c). The statute defines “crime of
violence” to mean any felony that
(A) has as an element the use, attempted use, or threatened use of physical force against
the person or property of another, or
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(B) that by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.
Id.
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clause struck down in Johnson.” Parnell, 652 F. App’x at 122. The court, however, recognized
that “[S]ection 924(c) imposes the enhancement on those who use a firearm ‘during and in
relation to any crime of violence or drug trafficking crime,’” and that the petitioner in Parnell
received an enhancement for possessing a firearm in furtherance of a drug trafficking crime, not
in furtherance of a crime of violence. Id. (emphasis original). The court determined that while the
constitutionality of § 924(c)’s definition of a “crime of violence” may be in question in the wake
of Johnson, “Johnson does not call into question [§924(c)’s] unambiguous definition of ‘drug
trafficking crime.’” Id. Because the definition of “drug trafficking” for which the petitioner in
Parnell was convicted was not vague and did not have a residual clause in any way similar to the
residual clause in the ACCA, the Third Circuit Court of Appeals determined that the reasoning in
Johnson had no effect on enhancements under § 924(c) that were based on drug trafficking
crimes.
Several other courts have likewise determined that the reasoning in Johnson does not
apply to § 924(c) enhancements based on drug trafficking crimes. United States v. Hare, 820
F.3d 93, 106 (4th Cir.), cert. denied, 137 S. Ct. 224 (2016), reh'g denied, Civil Action No. 165348, 2016 WL 6569830 (U.S. Nov. 7, 2016) (finding that Johnson did not apply to petitioner’s
case, because one of the two underlying charges for which petitioner had received an
enhancement under § 924(c) was a drug trafficking crime); Muhammad v. United States, Civil
Action No. 15-7502, 2016 WL 6595912, at *2 (D.N.J. Nov. 7, 2016) (“While Johnson did
invalidate the residual clause of the Armed Career Criminal Act, which acted as a catch all
provision for the statute's definition of a crime of violence, Johnson in no way invalidated or
altered the operation of the Act or the equivalent Sentencing Guideline as to drug trafficking
crimes.”); United States v. Gibson, Criminal Action No. 3:08-1057, 2016 WL 3552008, at *2
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(D.S.C. June 30, 2016), appeal dismissed (Sept. 27, 2016) (“Despite Defendant's argument that
all of § 924(c) is “void for vagueness” (ECF No. 496 at 2), if Johnson impacts § 924(c) at all it
would only serve to invalidate the residual clause in the crime of violence portion
(§ 924(c)(3)(B)) . . . . [T]he Supreme Court's holding in Johnson has no effect on convictions for
§ 924(c) based on drug trafficking crimes.); Rodriguez v. United States, Criminal Action No.
1:06-00004, 2016 WL 5402765, at *2 (W.D.N.C. Sept. 26, 2016) (“Section 924(c)(2)'s
unambiguous definition of ‘drug trafficking crime’ is nothing like the residual clause that the
Supreme Court found to be impermissibly vague in Johnson. Therefore, Johnson has no effect on
convictions under Section 924(c) based on drug trafficking crimes.”); Eldridge v. United States,
Civil Action No. 16-3173, 2016 WL 4062858, at *3 (C.D. Ill. July 29, 2016) (“[§ 924(c)(2)] is
nothing like the residual clause that Johnson found impermissibly vague. Section 924(c)(2) sets
forth the specific felonies that constitute a drug trafficking crime and does not contain a residual
clause. Therefore, Johnson has no effect on convictions for § 924(c) based on drug trafficking
crimes.”).
Because Johnson in no way altered the operation of the drug trafficking portions of
§ 924(c), and Thomas’s sentence enhancement under this statute was based solely on his drug
trafficking convictions, neither Johnson nor Welch provides any basis for relief. Thomas’s
sentence remains entirely proper and constitutional. Consequently, Thomas's claim is clearly
without merit, and his Motion to vacate sentence pursuant to 28 U.S.C. § 2255 must be denied.
VI.
Certificate of Appealability
When a district court issues a final order denying a § 2255 motion, the court must also
make a determination about whether a certificate of appealability (“COA”) should issue or the
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clerk of the court of appeals shall remand the case to the district court for a prompt determination
about whether a certificate should issue. See 3rd Cir. LAR. 22.2.
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a COA should issue when
the Petitioner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Based upon the Motion, files and records of this instant case, and for the reasons set forth
herein, the petitioner's sole claim is without merit. Because jurists of reason would not disagree
with this Court's denial of Petitioner's Motion to vacate sentence, petitioner did not show a denial
of his constitutional rights. This Court, therefore, will not issue a certificate of appealability.
An appropriate order will be entered.
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
Date: December 12, 2016
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