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)

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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. § § § § § § § § § 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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