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
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