United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
matter comes before the Court on pro se Petitioner
Naeem Vaughn's motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255. Vaughn challenges
his sentence on the following three grounds. First, his prior
conviction for aggravated assault does not qualify as a
“crime of violence” for the purpose of setting
his Base Offense Level, because the United States Sentencing
Guidelines (the “Guidelines”) implement the same
“residual clause” deemed unconstitutionally vague
in Johnson v. United States, 135 S.Ct. 2551 (2015).
Second, Vaughn received ineffective assistance of counsel
because his lawyer failed to make a certain Brady
challenge regarding the application of a 2-level enhancement
under 2K2.1(b)(4)(a). Third, the Court incorrectly applied a
4-level enhancement under sentencing guideline §
2K2.1(b)(6)(B) (using a firearm in connection with another
felony). There was no oral argument. For the reasons stated
below, Vaughn's § 2255 motion is DISMISSED WITH
PREJUDICE and the relief requested therein is DENIED.
Criminal Offense and Sentencing
7, 2014, Petitioner Naeem Vaughn was arrested by Newark
Police Department Officers who were conducting a routine
patrol of Stephen Crane Plaza. Two officers saw Vaughn pick
up a firearm and begin running in the opposite direction.
While fleeing Vaughn parted ways with the firearm, later
identified as a .40 caliber HiPoint Smith & Wesson. When
he eventually submitted to arrest, Vaughn was found to be in
possession of 30 “baggies” of crack cocaine.
January 21, 2015, Vaughn pleaded guilty to possession of a
firearm and ammunition by a convicted felon in violation of
18 U.S.C. § 922(g)(1). There was no plea agreement. At
sentencing, the Court adopted the Government's finding of
an offense level of 27, with an advisory guideline range of
100-120 months. See Sentencing Transcript
(“Tr.”) 21:3-7, Docket No. 14-cr-616, ECF No. 20.
The offense level was predicated on a 2-level enhancement for
use of a stolen firearm, § 2K2.1(b)(4)(A), and a 4-level
enhancement for use of a firearm “in connection with
another felony offense, ” § 2K2.1(b)(6)(B), namely
possession of cocaine with intent to distribute. Vaughn's
attorney argued that the prosecutor failed to establish that
the gun was in fact stolen or that the drugs were intended
for distribution rather than for personal use. Tr. 7-9. The
Court disagreed and found, based on a preponderance of the
evidence, that both enhancements would apply. Tr. 21:3-5.
After considering the factors set forth in 18 U.S.C. §
3553(a), the Court departed downward to offense level 24 and
sentenced Vaughn to a term of 78 months. Tr. 32-33. Vaughn
now resides at USP Allenwood in Allenwood, Pennsylvania.
Docket No. 16-cv-616, ECF No. 1.
The Instant Motion under 28 U.S.C. § 2255
has filed a pro se § 2255 motion seeking to
vacate or modify his sentence on three grounds. First, Vaughn
claims that the residual clause in Guideline §
2K2.1(a)(1) is unconstitutionally void for vagueness pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015).
Second, Vaughn asserts that his right to effective counsel
was violated because his counsel failed to challenge under
Brady v. Maryland the Court's application of a
2-level enhancement under 2K2.1(b)(a). Lastly, Vaughn argues
that the government failed to establish that Vaughn used the
firearm while in possession with intent to distribute drugs,
a finding which led to a 4-level enhancement under
2K2.1(b)(6)(B). The motion is timely under 28 U.S.C. §
STANDARD OF REVIEW
28 U.S.C. § 2255, a federal court may vacate, set aside
or correct a sentence “upon the ground that the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). A hearing is not required for § 2255
motion where “the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” United States v. Padilla- Castro, 426
F. App'x 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. §
2255(b)); accord United States v. Day, 969 F.2d 39,
41-42 (3d Cir. 1992). “[A]n error of law does not
provide a basis for collateral attack unless the claimed
error constituted a fundamental defect which inherently
results in a complete miscarriage of justice.”
United States v. Addonizio, 442 U.S. 178 (1979)
(internal quotations omitted).
The Residual Clause under Guideline 2K2.1(a)(2)
Vaughn argues that his prior conviction for aggravated
assault cannot qualify him for enhancement as a “crime
of violence” under the “residual clause” of
§ 2K2.1(a)(2) in light of Johnson, 135 S.Ct. at
2563. The Supreme Court in Johnson struck down an
identical residual clause of the Armed Career Criminal Act,
18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally
vague. 135 S.Ct. at 2563.That holding applies retroactively
pursuant to Welch v. United States, 136 S.Ct. 1257,
1268 (2016). Vaughn's challenge nonetheless fails because
the Supreme Court has since held that the Federal Sentencing
Guidelines are not susceptible to challenges under the
void-for-vagueness doctrine delineated in Johnson.
Beckles v. United States, 137 S.Ct. 886, 896 (2017).
Accordingly, Johnson provides no basis for relief
from the Court's application of U.S.S.G. §
2K2.1(a)(2). Vaughn's prior conviction for aggravated
assault was properly treated as a “crime of
violence” under the advisory Guidelines when the Court
set a Base Offense Level of 24.