Gaskins v. USA

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 15 . The Court DENIES and DISMISSES WITH PREJUDICE Gaskins's petition 6 , and ORDERS that this case be stricken from the Court's active docket. The Court directs the Clerk of Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 6/7/2017. (Copy petitioner/cmrrr)(kd) Modified on 6/7/2017 to correct docket text (kd). (Additional attachment(s) added on 6/7/2017: # 1 Certified Mail Return Receipt) (kd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

DELANO GASKINS,
Petitioner,
v.

CIVIL ACTION NO. 1:16CV98
CRIMINAL ACTION NO. 1:11CR85
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]
On May 23, 2016, the pro

se

petitioner, Delano Gaskins

(“Gaskins”), filed a petition pursuant to 28 U.S.C. § 2255, relying
on Johnson v. United States, 135 S. Ct. 2551 (2015), in which the
Supreme Court of the United States held that the residual clause of
the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague
(dkt. no. 1). Gaskins had not been sentenced under the ACCA, but
rather as a career offender under § 4B1.2(a)(2) of the United
States Sentencing Guidelines, which contains a similarly worded
residual clause. Based on the similar language, Gaskins argued that
§ 4B1.2(a)(2) was also unconstitutionally vague and he therefore
should not have been subject to the enhanced sentence as a career
offender. Id. at 2-3.
On June 22, 2016, the Court appointed Federal Public Defender
Katy J.Cimino to represent Gaskin, who, on the same day, refiled
the petition (dkt. no. 6). The Court referred the petition to
United States Magistrate Judge Robert W. Trumble for initial

GASKINS V. UNITED STATES OF AMERICA

1:16CV98

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]
screening and a Report and Recommendation (“R&R”) in accordance
with LR PL P 2.
On May 16, 2017, Magistrate Judge Trumble issued his R&R (dkt.
no. 15), in which he concluded that the petition should be denied
and dismissed with prejudice because of the recent decision by the
Supreme Court of the United States in Beckles v.

United States,

137 S. Ct. 886, 888 (2017). In Beckles, the Supreme Court held that
the residual clause in §4B1.2(a)(2) of the United States Sentencing
Guidelines that defines “crime of violence” was “not subject to
vagueness challenges under the Due Process Clause of the Fifth
Amendment

because

the

advisory

Guidelines

do

not

fix

the

permissible range of sentences. They merely guide the exercise of
a court’s discretion in choosing an appropriate sentence within the
statutory range.” Id. Consequently, Gaskins’s argument that Johnson
renders his sentence void has been rendered moot by Beckles, and
his petition must be denied.
The R&R also specifically warned Gaskins that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue (dkt. no. 15
at 3). The parties did not file any objections.1

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells
2

GASKINS V. UNITED STATES OF AMERICA

1:16CV98

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 15]
Consequently, finding no clear error, the Court ADOPTS the R&R
in its entirety (dkt. no. 15), DENIES and DISMISSES WITH PREJUDICE
Gaskins’s petition (dkt. no. 6), and ORDERS that this case be
stricken from the Court’s active docket.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this order to counsel of record and to the petitioner, certified
mail, return receipt requested.
Dated: June 7, 2017.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

3