Dubose v. United States of America

Filing 7

ORDER DIRECTING UNITED STATES TO RESPOND TO PETITION AND DENYING RELIEF UNDER JOHNSON V. UNITED STATES. Signed by Judge J. Daniel Breen on 8/20/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DERRICK DUBOSE,
Petitioner,
v.

No. 1:16-cv-01250-JDB-egb

UNITED STATES OF AMERICA,
Respondent.
ORDER DIRECTING UNITED STATES TO RESPOND TO PETITION
AND
DENYING RELIEF UNDER JOHNSON V. UNITED STATES
In September 2016, Petitioner, Derrick Dubose,1 filed a pro se motion to vacate, set aside,
or correct his sentence (the “Petition”) under 28 U.S.C. § 2255. (Docket Entry (“D.E.”) 1. 2)
Respondent, United States of America, is DIRECTED to file a response to the Petition within
twenty-eight days of the entry of this order. Petitioner may file a reply within twenty-eight days
of service of the response.
On the same day the inmate filed the Petition, a text entry was entered by the Clerk of Court
indicating that Dubose had requested relief under Johnson v. United States, 135 S. Ct. 2551 (2015).
(D.E. 3.) Although the Petition mentions Johnson, the inmate does not appear to be arguing that
the career offender provision of the United States Sentencing Guidelines (“Guidelines” or

1

In its discussion of the underlying criminal matter, the Court will refer to Dubose as the
“Defendant.”
2

Unless otherwise noted, record citations in this order are to Case Number 1:16-cv-01250JDB-egb.
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“U.S.S.G”) under which he was sentenced is void for vagueness.3 Nonetheless, the Court will
address the applicability of Johnson to Petitioner’s case.
BACKGROUND
In April 2014, a federal grand jury returned a five-count indictment charging Dubose with
marijuana trafficking (Counts 1 and 5), cocaine base trafficking (Counts 2 and 3), and MDMA4
trafficking (Count 4). (No. 1:14-cr-10036-JDB-1, D.E. 2.) In March 2015, the Defendant pleaded
guilty to Count 2 pursuant to an agreement with the Government. (Id., D.E. 37-39.) At sentencing,
Dubose was determined to be a career offender under U.S.S.G. § 4B1.1 based on Tennessee
convictions for delivery and sale of a controlled substance. (Id., D.E. 49 at PageID 95-96;
Presentence Report ¶¶ 24, 38, 40.) The Court imposed a sentence of 120 months and three years
of supervised release, with the sentence to run concurrently with four unexpired state sentences.
(No. 1:14-cr-10036-JDB-1, D.E. 42.) Defendant took an unsuccessful direct appeal. (Id., D.E.
57.)
DISCUSSION
A prisoner seeking to vacate his sentence under § 2255 “must allege either: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States,
471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted).

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“[A] defendant is a career offender if (1) [he] was at least eighteen years old at the time of
the instant offense, (2) the instant offense 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.’” United States v. Alexander, 686 F. App’x 326, 327
(6th Cir. 2017) (per curiam) (quoting U.S.S.G. § 4B1.1(a)).

3, 4 methylenedioxy-methamphetamine.  www.drugabuse.gov/publications/drugfacts/
mdma-ecstasymolly.

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2

In Johnson, the United States Supreme Court addressed the constitutionality of the residual
clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See Johnson, 135 S. Ct.
at 2556-57. Under the ACCA, a person who is convicted of being a felon in possession of a firearm
and who “has three previous convictions . . . for a violent felony or a serious drug offense . . .
committed on occasions different from one another . . . shall be . . . imprisoned not less than fifteen
years.” 18 U.S.C. § 924(e)(1). The statute defines “violent felony” as
any crime punishable by imprisonment for a term exceeding one year . . . that . . .
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B). The phrase “otherwise involves conduct that presents a serious potential
risk of physical injury to another” is known as the “residual clause.” Johnson, 135 S. Ct. at 255556.
The Court in Johnson held that the residual clause was unconstitutionally void for
vagueness. Id. at 2256-57. Therefore, an enhanced sentence under the residual clause violated
due process as guaranteed by the Fifth Amendment. Id.
The ruling in Johnson did not affect Petitioner’s designation as a career offender under the
Guidelines. Even if Johnson called into question the Guidelines’ definition of “crime of violence,”
Dubose’s status as a career offender was not based on any crimes of violence but, rather, on two
controlled substance offenses. See, e.g., Smith v. United States, Nos. 3:11-CR-115-TAV-HBG-1,
3:14-CV-339-TAV, 2017 WL 151065, at *6 (E.D. Tenn. Jan. 13, 2017) (holding Johnson
irrelevant where enhancement was based on drug convictions). Moreover, on March 6, 2017, the
Supreme Court refused to extend Johnson’s reasoning to the Guidelines’ career offender
provisions. See Beckles v. United States, 137 S. Ct. 886, 892 (2017). The Court explained that,

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“[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences.”
Id. The Guidelines, therefore, “are not subject to a vagueness challenge under the Due Process
Clause.” Id.
Accordingly, relief under Johnson is DENIED.
IT IS SO ORDERED this 20th day of August 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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