Harper v. USA

Filing 4

ORDER STAYING CASE PENDING SUPREME COURT ACTION. Signed by District Judge John Preston Bailey on 9/30/16. (njz)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
JEFFREY KEITH HARPER,
Petitioner,
v.

CRIMINAL ACTION NO.: 3:07-CR-49
CIVIL ACTION NO.: 3:16-CV-89
(BAILEY)

UNITED STATES OF AMERICA,
Respondent.
ORDER STAYING CASE PENDING SUPREME COURT ACTION
Pending before this Court is the Defendant’s Motion to Vacate Sentence Pursuant
to 28 U.S.C. § 2255 [Doc. 304].1 The petitioner, through Assistant Federal Public Defender
Nicholas J. Compton, argues that this Court should vacate his sentence of imprisonment
and resentence him in light of recent decisions issued by the Supreme Court of the United
States2 and the United States Court of Appeals for the Fourth Circuit.3
On January 15, 2008, this Court sentenced the petitioner to a term of 151 months’
imprisonment following a plea of guilty to Count Six of the Indictment, charging him with
distributing crack. In calculating the petitioner’s advisory guideline sentencing range, the
petitioner argues this Court found that both of his prior convictions constituted a “crime of
violence” under the United States Sentencing Guidelines (“USSG”) career offender

1

All references to CM/ECF docket numbers refer to the Criminal Action Number.

2

Johnson v. United States, 135 S. Ct. 2251 (2015); Welch v. United States, 136
S. Ct. 1257 (2016).
3

In re Hubbard, No. 15-276, 2016 WL 3181417 (4th Cir. June 8, 2016).

enhancement. Accordingly, the petitioner was designated as a career offender under
USSG § 4B1.1. Pursuant to the career offender designation, the petitioner’s base offense
level of 16 was increased to a level 32. After a three-level reduction for acceptance of
responsibility, the petitioner’s total offense level was 29. With a criminal history category
of VI, the Guidelines provided a sentencing range of 151 to 188 months. This Court
imposed a sentence of 151 months’ imprisonment.
The petitioner argues that the predicate convictions that resulted in his designation
as a career offender were classified as crimes of violence based on the “residual clause”
of the career offender enhancement. The petitioner contends that the residual clause has
since been found to be unconstitutionally vague, and he asks this Court to vacate his
sentence and to resentence him without the career offender enhancement.
Subsequent to the petitioner’s sentencing, the Supreme Court issued its decision
in Johnson v. United States, 135 S. Ct. 2551 (2015), holding that the “residual clause” of
the Armed Career Criminal Act is unconstitutionally vague.4 Subsequently, in Welch v.
United States, 136 S. Ct. 1257 (2016), the Supreme Court held that Johnson announced
a substantive rule that applies retroactively on collateral review. And recently, in In re
Hubbard, No. 15-276, 2016 WL 3181417 (4th Cir. June 8, 2016), the United States Court
of Appeals for the Fourth Circuit discussed the applicability of the Johnson holding to the
career offender provision.5 Here, the petitioner asserts that the holdings in Johnson,
The residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) defines a “violent felony” as
including any crime punishable by imprisonment for a term exceeding one year that
“involves conduct that presents a serious potential risk of physical injury to another.”
4

United States Sentencing Guidelines § 4B1.2(a)(2), which defines the term “crime
of violence” as that term is used in the career offender provision, includes a residual clause
5

2

Welch and In re Hubbard have rendered his sentence of imprisonment unlawful,
necessitating a prompt resentencing.
The Fourth Circuit, however, left open the question of whether, under Johnson, the
definition of “crime of violence” in the Sentencing Guidelines is unconstitutionally vague.
See Hubbard, 2016 WL 3181417, at *4. This issue is currently pending in the Supreme
Court. See Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted,
136 S. Ct. 2510 (June 27, 2016) (No. 15-8544). At issue in Beckles is whether Johnson’s
holding applies to the residual clause of the career offender guideline, USSG § 4B1.2(a)(2),
and, if so, whether Johnson’s invalidation of the residual clause of the career offender
guideline applies retroactively on collateral review.
Upon review of the aforementioned decisions and the pertinent portions of the record
in this case, it appears that petitioner’s requested relief is dependent upon further action
by the Supreme Court, namely a decision in Beckles.6 Accordingly, for the reasons stated
herein, this Court ORDERS that this matter be STAYED pending the Supreme Court’s
decision in Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted,
136 S. Ct. 2510 (June 27, 2016) (No. 15-8544).

virtually identical to the clause that the Supreme Court deemed unconstitutionally vague
in Johnson.
6

Blow v. United States, No. 16-1530, 2016 WL 3769712, at *2 (2d Cir. July 14,
2016)(concluding that petitoner made a prima facie showing that his claim satisfies § 2255,
but ordering the district court to hold the petition “in abeyance pending the outcome of
Beckles.”); In re Thomas F. Hoffner, Jr., No 15-2883, at 2 (3rd Cir. 2016)(granting
Government’s motion to stay pending decision in Beckles); Fernandez v. United States,
No. 4:08-cr-98-Y(21) (N.D. Tx. July 15, 2016)(same); United States v. Khatib, No. 12-cr193, 2016 WL 3755946, at *2 (N.D. Ca. July 14, 2016)(same); Bozeman v. United States,
No. 3:16-cv-1817-N-BN (N.D. Tx. July 11, 2016)(same).
3

It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: September 30, 2016.

4