United States District Court, D. New Jersey, Camden Vicinage
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
matter comes before the Court upon Petitioner's amended
motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255. (Am. Mot. to Vacate, ECF No. 10.) For the
reasons discussed below, the Court denies the motion.
26, 2013, Petitioner was indicted for possession of a firearm
by a previously convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (count one), possession of a controlled
dangerous substance with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count two) and
possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1)(A) (count
three). United States v. Thomas, 12cr378(RMB)
(D.N.J.) (Superseding Indictment, ECF No. 26). After a jury
trial, Petitioner was found guilty on all three counts. (Jury
Verdict, ECF No. 52; Supplemental Jury Verdict, ECF No. 53.)
United States Probation Office prepared a Presentence
Investigation Report (“PSI”) indicating at
least three drug convictions between February 1, 2001 and May
5, 2009 that qualified Petitioner as a career offender. (PSI
dated November 13, 2014, ¶¶39-44.) At
Petitioner's sentencing hearing on April 21, 2015, all
agreed that Petitioner qualified as a career offender under
U.S.S.G. § 4B1.1(a). (Sentencing Tr., ECF No. 91 at 5.)
Petitioner's sentence was based on an offense level of
37, subjecting him to a guidelines range of 360-months to
life imprisonment. (Id. at 6-7.)
Court varied downward to an offense level of 33 and imposed a
sentence of 120 months on count One, concurrent to 190 months
on count Two, consecutive to 60 months on count Three, for a
total 250-month term of imprisonment. (Id. at
41-42.) Petitioner appealed to the Third Circuit Court of
Appeals, which affirmed the judgment of conviction on
February 12, 2016. United States v. Thomas,
12cr378(RMB) (D.N.J.) (Judgment of USCA, ECF No. 95.)
28, 2016, Petitioner filed a motion to vacate, set aside or
correct sentence under 28 U.S.C. § 2255, citing the
Supreme Court decisions of United States v. Johnson,
135 S.Ct. 2551 and Welch v. United States, 136 S.Ct.
1257 (2016). (Mot. to Vacate, ECF No. 1.) On September 16,
2016, the Court granted a stay of proceedings pursuant to
Standing Order 16-2. (Order, ECF No. 3.) On May 17, 2017, the
Court reopened this matter and ordered Respondent to file an
answer to the motion. (Order, ECF No. 4.) On December 26,
2017, Petitioner filed an amended motion under 28 U.S.C.
§ 2255, presently before the Court. (Am. Mot. to Vacate,
ECF No. 10.) Respondent filed an answer to the amended
motion. (Answer, ECF No. 15.)
The Amended Motion to Vacate, Set Aside or Correct
Sentence Under 28 U.S.C. § 2255
relies on the following cases in concluding that the prior
convictions used to enhance his sentence under U.S.S.G.
§ 4B1.1(2)(a) and (2)(b) no longer qualify and he should
be resentenced accordingly: Johnson, 135 S.Ct.
2551); United States v. O'Connor, 874
F.3d 1147 (10th Cir. 2017); Sessions v. Dimaya, 138
S.Ct. 1204 (2018); Mathis v. United States, 136
S.Ct. 2243 (2016); and United States v. Williams,
396 Fed.Appx. 951, 953 (4th Cir. 2010). Petitioner further
asserts that he should be resentenced pursuant to Dean v.
United States, 137 S.Ct. 1170 (2017).
notes that Petitioner's argument primarily centers on
decisions that invalidated the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B) and altered the definition of “crime of
violence, ” but Petitioner qualified as a career
offender based solely on this prior controlled substance
offenses under U.S.S.G. § 4B1.1(a), (c)(2)(A),
(c)(2)(B), and (c)(3), which are unaffected by the recent
decisions cited by Petitioner.
also seeks relief pursuant to Dean, 137 S.Ct. 1170
(2017), which expanded the range of sentencing a court may
consider. Respondent, however, contends that Dean
did not fashion a new substantive rule of constitutional law,
and thus, does not apply retroactively. ...