Pierce v. United States of America
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
March 08, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
SHERMAN W. PIERCE,
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
2255 to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody ("§ 2255 Motion")
26) . 1
(Docket Entry No.
United States Supreme Court's decision in Beckles v. United States,
(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
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) .
All docket entry references are to Criminal No. H-09-445.
The Court has carefully reviewed Pierce's
2255 Motion as
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
Entry No. 26, p. 3)
(§ 2255 Motion,
In Johnson the Court held that the residual
924 (e) (2) (B) (ii),
for purposes of sentence enhancement for a
felon's possession of a firearm was unconstitutionally vague.
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
"crime of violence"
pursuant to§ 4B1.2(a) and Application Note 1 to the Commentary to
No. 20, p. 5.
Application Note 1 stated that a "crime of violence"
WL 855781, at *13 (March 6, 2017), the court held that "[b]ecause
the advisory Sentencing Guidelines are not subject to a due process
4B1.2(a) 's residual clause is not void for
guideline range was calculated using the residual clause definition
of a crime of violence, the Court's decision in Beckles forecloses
The court therefore concludes that Pierce is not
entitled to relief under
Accordingly, the United States' Motion to Lift Stay and for
Summary Dismissal (Docket Entry No.
Motion Under 28
is GRANTED; and Pierce's
2255 to Vacate,
Sentence By a Person in Federal Custody (Docket Entry No. 26)
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
SIGNED at Houston, Texas, on this the 8th day of March, 2017.
UNITED STATES DISTRICT JUDGE
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