Pierce v. United States of America
Filing
3
Copy of MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:09-445 (Defendant No. 1) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
March 08, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.
SHERMAN W. PIERCE,
Defendant/Petitioner.
§
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§
§
§
§
§
§
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1588
(Criminal Number H-09-445)
MEMORANDUM OPINION AND ORDER
Petitioner, Sherman W. Pierce, has filed a Motion Under 28
U.S.C.
§
2255 to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody ("§ 2255 Motion")
September
1,
2016,
the
court
26) . 1
On
pending
the
(Docket Entry No.
stayed
this
action
United States Supreme Court's decision in Beckles v. United States,
No. 15-8544
(Order, Docket Entry No. 38).
The United States has
now filed a Motion to Lift Stay and for Summary Dismissal (Docket
Entry No. 3 9) .
On November 12, 2009, petitioner pleaded guilty to possession
of
a
firearm
by a
convicted
felon
in violation
of
18
U.S. C.
§§
922(g) (1) and 924(a) (2); and on February 12, 2010, petitioner
was sentenced within the advisory Sentencing Guideline range to 71
months in prison and three years of supervised release (Judgment in
a Criminal Case, Docket Entry No. 24) .
1
All docket entry references are to Criminal No. H-09-445.
The Court has carefully reviewed Pierce's
required
by
Rule
4(b)
of
the
Rules
§
Governing
2255 Motion as
Section
2255
Proceedings for the United States District Courts and concludes
that a response to his motion is not required.
Pierce argues that he is entitled to habeas relief because
his sentence was enhanced under "the residual clause" because of a
prior
conviction
United States,
in
135 S.
Entry No. 26, p. 3)
clause
§
of
violation
the
Ct.
the
holding
(2015).
in
Johnson
(§ 2255 Motion,
v.
Docket
In Johnson the Court held that the residual
Armed
924 (e) (2) (B) (ii),
2551
of
Career
Criminal
Act
(ACCA),
18
U.S.C.
for purposes of sentence enhancement for a
felon's possession of a firearm was unconstitutionally vague.
In
Welch v. United States, 136 S. Ct. 1257 (2016), the Court held that
its decision in Johnson announced a substantive rule that applied
retroactively on collateral review.
Pierce's sentence was not based on the ACCA, and the ACCA did
not affect his advisory sentencing guideline range.
(Nor was his
guideline range or his sentence affected by 18 U.S.C. § 16, which
defines a "crime of violence.")
Instead, his base offense level of
20 was calculated pursuant to U.S.S.G.
felony conviction for murder,
§
2K2.1(a) (4) (A) based on a
which was
a
"crime of violence"
pursuant to§ 4B1.2(a) and Application Note 1 to the Commentary to
§
4B1. 2.
See
No. 20, p. 5.
Presentence
Investigation
Report,
Docket
Entry
Application Note 1 stated that a "crime of violence"
-2-
includes
,
murder
In
Beckles
v.
United
States,
2017
WL 855781, at *13 (March 6, 2017), the court held that "[b]ecause
the advisory Sentencing Guidelines are not subject to a due process
vagueness challenge,
vagueness."
§
4B1.2(a) 's residual clause is not void for
Therefore,
even
assuming
arguendo
that
Pierce's
guideline range was calculated using the residual clause definition
of a crime of violence, the Court's decision in Beckles forecloses
Pierce's claim.
The court therefore concludes that Pierce is not
entitled to relief under
§
2255.
Accordingly, the United States' Motion to Lift Stay and for
Summary Dismissal (Docket Entry No.
Motion Under 28
u.s.c.
§
39)
is GRANTED; and Pierce's
2255 to Vacate,
Set Aside,
or Correct
Sentence By a Person in Federal Custody (Docket Entry No. 26)
is
DISMISSED WITH PREJUDICE.
The Clerk of Court is ORDERED to provide a
copy of this
Memorandum Opinion and Order to Pierce and to the United States
Attorney for the Southern District of Texas, and to file a copy of
this
Memorandum
Opinion
and
Order
in
the
corresponding
civil
action.
SIGNED at Houston, Texas, on this the 8th day of March, 2017.
IM LAKE
UNITED STATES DISTRICT JUDGE
-3-
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