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Johnson v. United States

United States District Court, D. New Jersey

June 7, 2019

KEENAN JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE

         Petitioner, Keenan Johnson, is a federal prisoner currently incarcerated at the Federal Correctional Institute at Allenwood, Pennsylvania. Petitioner, through counsel, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Petitioner's motion will be denied and a certificate of appealability shall not issue.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On October 3, 2014, Petitioner pled guilty to Conspiracy to Possess with Intent to Distribute Heroin, contrary to 21 U.S.C. §§ 841(a) and (b)(1)(B), in violation of 21 U.S.C. § 846. (See ECF No. 6 at 3.) Petitioner was sentenced on January 29, 2015 by the Honorable Joseph E. Irenas, U.S.D.J. (See ECF No. 4.) According to the Presentence Report prepared by the United States Probation Office, Petitioner qualified as a career offender within the meaning of § 4B1.1 of the United States Sentencing Guidelines (“Guidelines”). (See Id. at 3.) Under § 4B1.1, a defendant is subject to punishment as a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant 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.

         United States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov. 2014) (“U.S.S.G.”).[1]

         At the time Petitioner was sentenced, the Guidelines defined a “crime of violence” as:

(a) The term “crime of violence” means 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 [the “elements clause”], or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, [the “enumerated offenses”] or otherwise involved conduct that presents a serious potential risk of physical injury to another [the “residual clause”].

U.S.S.G. § 4B1.2(a) (Nov. 1, 2014).

         Petitioner was designated a career offender based upon his previous convictions in New Jersey for a controlled dangerous substance offense for possession of a controlled dangerous substance with intent to distribute within 1, 000 feet of school property or bus, in violation of N.J. Stat. Ann. § 2C:35-7; and a crime of violence offense for terroristic threats, in violation of N.J. Stat. Ann. § 2C:12-3b. (See ECF No. 1 at 2.) At the time of sentencing, neither counsel objected to Petitioner's designation as a career offender. (See generally ECF No. 4.) As a result of this enhancement, the Presentence Report recommended that Petitioner receive a sentence between 188- and 235-months in prison, based upon an offense level of 31 and a criminal history category of VI. (See Id. at 3.)[2]

         At sentencing, Judge Irenas granted a downward variance pursuant to 18 U.S.C. § 3553(a) and set Petitioner's offense level at 28 and his criminal history category at V. (See Id. at 26.) Petitioner's new guideline range was recommended to be between 130- and 162-months imprisonment. (See id.) Judge Irenas sentenced Petitioner to the low end of the range, ordering that he serve a term of 130 months in prison and upon his release, a term of five years supervised release. (See id.)

         In January 2016, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, arguing that in light of Descamps v. United States, 570 U.S. 254 (2013), and Johnson v. United States, 135 S.Ct. 2551 (2015), his conviction for terroristic threats was no longer a predicate offense for the career offender designation and that his sentence violated due process of law. (See ECF No. 1.) In March 2016, Respondent filed an answer in opposition. (See ECF No. 6.) Petitioner filed a traverse thereafter. (See ECF No. 7.)

         In March 2017, Petitioner filed a motion for the court to grant him leave to amend his pending § 2255 motion. (See ECF No. 8.) Petitioner stated that the recent Supreme Court decision in Beckles v. United States, 137 S.Ct. 886 (2017), rendered his vagueness challenge to the Career Offender Guidelines moot. (See Id. at 2.) Although Petitioner argued his claim under Descamps remained viable, he also stated that the claim could “no longer be framed as a vagueness challenge through the Johnson lens.” (Id.) Rather, Petitioner argued that he should be permitted to amend his motion to frame his claim as one of “ineffective assistance of counsel.” (Id.) Petitioner's motion to amend was denied on May 2, 2018. (See ECF No. 9; ECF No. 10.)

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, a motion to vacate, set aside or correct a sentence of a person in federal custody entitles a prisoner to relief if “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). When considering a § 2255 motion, a district court “ ‘must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.' ” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). Additionally, a district court must hold an evidentiary hearing on the motion if “ ‘the files and records do not show conclusively that [the movant] was not entitled to relief.' ” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (alteration in original) (quoting Solis v. United States, 252 F.3d 289, 294 (3d Cir. 2001)).

         III. DISCUSSION

         Petitioner's argument in the instant motion is twofold. Petitioner asserts that not only is his conviction for terroristic threats under N.J. Stat. Ann. § 2C:12-3b not a crime of violence under the Guidelines elements clause, but that it also does not qualify as a crime of violence under the Guidelines residual clause. (See ECF Nos. 1, 18.) The elements clause of § 4B1.2 states that an offense is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See U.S.S.G. § 4B1.2(a)(a) (Nov. 1, 2014). The residual clause of § 4B1.2 states that an offense is considered a crime of violence if it “presents a potential risk of physical injury to another.” See U.S.S.G. § 4B1.2(a)(2) (Nov. 1, 2014). Petitioner maintains that his since conviction for terroristic threats does fall under either of these clauses, he was improperly designated a career offender and he should be resentenced without that enhancement. (See ECF No. 18 at 10.)

         A. Elements Clause of § 4B1.2

         Petitioner first alleges that his prior offense for third-degree terroristic threats is not a predicate offense that qualifies him as a career offender under the elements clause of § 4B1.2(a)(1). (See ECF No. 4-8.) Specifically, Petitioner asserts that the United States Supreme Court decision in Descamps requires a finding that New Jersey's terroristic threats offense categorically fails to qualify as a predicate offense under ยง 4B1.2(a)'s ...


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