Wortham v. USA
Filing
8
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PETITIONER'S § 2255 MOTION AND OVERRULING PETITIONER'S OBJECTIONS: Adopting Report and Recommendations re 7 Report and Recommendations re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Anthony M. Wortham; Denying 1 Motion to Vacate; Overruling Objections to R/R; Dismissing civil action with Prejudice and Striking same from active docket of this Court; NOA to be filed within 60 days. Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 8/17/16.(copy to Petitioner by cert. mail) (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ANTHONY M. WORTHAM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Civil Action No. 5:16CV76
(Criminal Action No. 5:11CR25)
(STAMP)
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S § 2255 MOTION AND
OVERRULING PETITIONER’S OBJECTIONS
The petitioner, Anthony M. Wortham (“Wortham”), filed this pro
se1 motion under 28 U.S.C. § 2255 challenging the validity of his
conviction and sentence under Johnson v. United States, 135 S. Ct.
2551 (2015).
This matter was referred to United States Magistrate
Judge Robert W. Trumble under Local Rule of Civil Procedure 72.01.
The magistrate judge entered a report recommending that Wortham’s
motion be denied.
and recommendation.
Wortham filed timely objections to the report
For the following reasons, this Court adopts
and affirms the report and recommendation, denies the § 2255
motion, and overrules Wortham’s objections.
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
I.
Background
Wortham was convicted of conspiracy to distribute more than
500 grams of cocaine and more than 28 grams of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.
This
Court sentenced Wortham to 151 months of imprisonment to be
followed by five years of supervised release.
This Court adopted
the Presentence Investigation Report (“PSR”), which recommended
application of the Career Criminal sentencing enhancement under
U.S.S.G. § 4B1.1.
Wortham’s prior felony convictions included an
Ohio conviction for trafficking in drugs in the vicinity of
juveniles, and two separate Ohio convictions for trafficking in
drugs.
Wortham argues that under Johnson, the Career Criminal
enhancement should not have been applied, and he asks this Court to
resentence him.
Magistrate Judge Trumble concluded that Johnson does not apply
to Wortham’s conviction because he was not deemed a Career Criminal
under U.S.S.G. § 4B1.2(a)’s residual clause defining “crime of
violence.”
In his objections, Wortham argues that the PSR defines
his current offense and prior offenses as crimes of violence.
He
argues that they could only have been defined as crimes of violence
under U.S.S.G. § 4B1.2(a)’s residual clause, and that the residual
clause is invalid after Johnson.
2
II.
Applicable Law
Because the petitioner timely filed objections to the report
and recommendation, the magistrate judge’s recommendation will be
reviewed de novo as to those findings to which objections were
made.
28 U.S.C. § 636(b)(1)(C).
As to those findings to which
objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
28
U.S.C. § 636(b)(1)(A).
III.
Discussion
Section 4B1.1 of the United States Sentencing Guidelines
provides for a sentencing enhancement for a “career offender.”
A
defendant is a career offender if:
(1) the defendant was at least eighteen years old at the
time the defendant committed the . . . offense of
conviction; (2) the . . . offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. § 4B1.1(a) (2011 ed.).2
A “controlled substance offense”
is any federal or state offense “punishable by imprisonment for a
term exceeding one year” and that “prohibits the manufacture,
import,
export,
distribution,
or
dispensing
of
a
controlled
substance . . . or the possession of a controlled substance . . .
2
The Presentence Investigation Report was prepared using the
2011 edition of the United States Sentencing Guidelines. See ECF
No. 15 at 12.
3
with
intent
dispense.”
to
manufacture,
import,
U.S.S.G. § 4B1.2(b).
export,
distribute,
or
A “crime of violence” is
any offense under federal or state law punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson,
extortion, involves use of explosives,
otherwise involves conduct that presents
serious potential risk of physical injury
another.
or
or
a
to
U.S.S.G. § 4B1.2(a) (emphasis added).
The
underlined
phrase
above
is
referred
to
as
U.S.S.G.
§ 4B1.2(a)’s residual clause, and it includes substantially the
same language as the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e).
In Johnson, the Supreme Court
held that the residual clause of the ACCA is unconstitutionally
vague.
Wortham argues that he was sentenced under U.S.S.G.
§ 4B1.2(a)’s residual clause, and that the residual clause is void
for vagueness under Johnson.
The question of whether Johnson’s
holding also applies to invalidate U.S.S.G. § 4B1.2(a)’s residual
clause is currently pending before the Supreme Court.
See Beckles
v. United States, No. 15-8544, 136 S. Ct. 2510 (2016).
However,
even if Johnson applies to U.S.S.G. § 4B1.2(a)’s residual clause,
Wortham is not entitled to relief because his predicate offenses
were not crimes of violence under U.S.S.G. § 4B1.2(a)’s residual
clause.
4
Wortham’s
offense
of
conviction
was
for
conspiracy
to
distribute cocaine and cocaine base in violation of 21 U.S.C.
§ 841(a).
Wortham has a prior Ohio conviction for trafficking in
drugs in the vicinity of juveniles, and two separate, prior Ohio
convictions for trafficking in drugs.
Each of these offenses was
“punishable by imprisonment for a term exceeding one year” and for
violating federal or state laws that “prohibit[] the manufacture,
import,
export,
distribution,
or
dispensing
of
a
controlled
substance . . . or the possession of a controlled substance . . .
with
intent
to
manufacture,
import,
export,
distribute,
or
dispense.” U.S.S.G. § 4B1.2(b); see also Ohio Rev. Code § 2925.03.
Accordingly, Wortham is a “career offender” under U.S.S.G. § 4B1.1
because his offense of conviction was a “controlled substance
offense,”
and
he
had
at
least
“controlled substance offense.”
two
prior
convictions
of
a
Thus, Wortham is not entitled to
relief under Johnson.
Further, Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 cases provides that the district court “must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant” in such cases.
This memorandum opinion
and order is a final order adverse to the petitioner in a case in
which 28 U.S.C. § 2253(c)(1) requires issuance of a certificate of
appealability to take an appeal.
5
This
Court
finds
that
it
is
inappropriate
certificate of appealability in this matter.
to
issue
a
Specifically, this
Court finds that Wortham fails to make a “substantial showing of
the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by
the
district
court
is
debatable
or
wrong
and
that
any
dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
This Court concludes that reasonable jurists would not find this
Court’s ruling to be debatable.
Accordingly, Wortham is DENIED a
certificate of appealability by this district court.
Wortham may,
however, request a circuit judge of the United States Court of
Appeals
for
the
Fourth
Circuit
to
issue
a
certificate
of
appealability.
IV.
Conclusion
For the reasons set forth above, the magistrate judge’s report
and
recommendation
(ECF
No.
8/196)
is
AFFIRMED
AND
ADOPTED.
Accordingly, Wortham’s § 2255 motion (ECF No. 1/190) is DENIED and
Wortham’s objections to the report and recommendation (ECF No. 201)
are OVERRULED.
It is ORDERED that this civil action be DISMISSED
WITH PREJUDICE and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
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on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
August 17, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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