Primus v. USA

Filing 7

ORDER ADOPTING 5 REPORT AND RECOMMENDATION; denying and dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Andre Turner Primus. This case is ordered STRICKEN from the docket and judgment entered in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 1/10/2017. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 1/10/2017: # 1 Certified Mail Return Receipt) (tlg).

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

ANDRE TURNER PRIMUS,
Petitioner,
v.

CIVIL ACTION NO.: 3:16-CV-90
CRIMINAL ACTION NO.: 3:12-CR-24
(GROH)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION1
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge Robert W. Trumble. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Trumble for submission
of an R&R. On July 8, 2016, Magistrate Judge Trumble issued his R&R finding the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
inapplicable to alter the Petitioner’s career offender status and recommending that this
Court deny and dismiss his 28 U.S.C. § 2255 petition.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to review de novo
those portions of the magistrate judge’s findings to which objection is made. However,
this Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge to which no objections are made. Thomas v.
Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner constitutes a

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Unless otherwise noted, all citations to docket numbers in this Order reference entries in the above-styled
criminal action.

waiver of de novo review and a petitioner’s right to appeal this Court’s Order. 28 U.S.C.
§ 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States
v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In this case, pursuant to 28 U.S.C.
§ 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, objections to
Magistrate Judge Trumble’s R&R were due within fourteen days after being served with
a copy of the same. The Petitioner was served with the R&R on July 13, 2016, and timely
filed objections. Accordingly, the Court will review de novo those portions of the R&R to
which the Petitioner objects and the remainder of the R&R for clear error.
The Petitioner argues that the Supreme Court’s decision in Johnson renders his
career offender designation under § 4B1.1 of the United States Sentencing Guidelines
unconstitutional. Specifically, he claims that his 1996 New York conviction for first degree
robbery is no longer considered a crime of violence under § 4B1.2(a) and thus cannot be
considered a predicate offense for career offender enhancement purposes.

The

Petitioner avers that without the 1996 robbery conviction, he no longer has the required
number of requisite offenses to qualify as a career offender under the Guidelines and
therefore must be resentenced.
On November 10, 1995, the Petitioner was arrested in Brooklyn, New York, for first
degree robbery. On July 18, 1996, he pled guilty and was sentenced to three to six years
of imprisonment. In 1995, a person was guilty of first degree robbery in the state of New
York if
he forcibly [stole] property and when, in the course of the commission of the
crime or of immediate flight therefrom, he or another participant in the crime:
1. Cause[d] serious physical injury to any person who is not a participant in
the crime; or

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2. [Was] armed with a deadly weapon; or
3. Use[d] or threaten[ed] the immediate use of a dangerous instrument; or
4. Display[ed] what appear[ed] to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm . . . .
N.Y. Penal Law § 160.15 (1995). In 1995, and today, the offense of first degree robbery
in New York requires, as an element, the use of force. Therefore, the Defendant’s robbery
conviction is considered a crime of violence under the elements clause—not the residual
clause—of § 4B1.2(a).
In Johnson, the Supreme Court declared the residual clause of the Armed Career
Criminal Act (“ACCA”) void as unconstitutionally vague. 135 S. Ct. at 2557. The ACCA’s
residual clause defines a “violent felony” as any crime punishable by a term of
imprisonment in excess of one year that “involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Prior to August
1, 2016, the residual clauses under the ACCA and § 4B1.2(a)(2) of the Guidelines were
identical. Courts are currently split as to whether Johnson applies to the residual clause
in the Guidelines. In Beckles v. United States, No. 15-8544, 136 S. Ct. 2510 (2016), the
Supreme Court will determine this issue.
Here, Johnson arguably could apply to invalidate the Defendant’s career offender
enhancement if his robbery conviction was labeled a crime of violence based upon
§ 4B1.2(a)’s residual clause. However, because the Defendant’s robbery conviction falls
under the elements clause of § 4B1.2(a),2 Johnson is inapplicable. See Mitchell v. United

2

The elements clause of § 4B1.2(a) defines a crime of violence as an offense punishable by a term of
imprisonment in excess of one year that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1).

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States, 15 Civ. 6379 (LGS), 2016 WL 1383511 (S.D.N.Y. Apr. 6, 2016). Furthermore, in
addition to the elements clause, at the time of the Defendant’s sentencing, the
commentary of § 4B1.2(a) listed robbery as a crime of violence. U.S.S.G. § 4B1.2(a) cmt.
n.1 (2011). Moreover, the Guidelines were recently amended to include robbery as an
enumerated crime of violence under § 4B1.2(a)(2).
Upon careful review of the record, and finding no error,3 it is the opinion of this
Court that Magistrate Judge Trumble’s Report and Recommendation [ECF No. 60 in 3:12CR-24; ECF No. 5 in 3:16-CV-90] should be, and is, hereby ORDERED ADOPTED. The
Court ORDERS that the Petitioner’s § 2255 petition [ECF No. 55 in 3:12-CR-24; ECF No.
1 in 3:16-CV-90] is DENIED and DISMISSED.
The Court ORDERS that the Petitioner’s Motion for Appointment of Counsel [ECF
No. 64 in 3:12-CR-24] is DENIED as moot.
The Court ORDERS the above-styled civil case STRICKEN from its active docket.
The Clerk is DIRECTED to enter a separate judgment order in favor of the
Respondent.
Upon an independent examination of the record, the Court finds that the Petitioner
has failed to make “a substantial showing of the denial of a constitutional right,” and
therefore DENIES a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

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The Court is cognizant of the present posture of United States v. Jones, 105 F. Supp. 3d 233 (E.D.N.Y.
2015), which is the primary case cited in the R&R. Following entry of the R&R, the Second Circuit vacated
and remanded the Jones decision. United States v. Jones, 830 F.3d 142 (2d Cir. 2016). However, the
Second Circuit has since vacated its own decision and ordered the appellee’s petition for rehearing and for
rehearing en banc held in abeyance pending the Supreme Court’s decision in Beckles. United States v.
Jones, 838 F.3d 296 (2d Cir. 2016). The status of the Jones case does not alter the Court’s decision in this
matter.

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The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
and to mail a copy to the pro se Petitioner by certified mail, return receipt requested.
DATED: January 10, 2017

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