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Thomas v. United States

United States District Court, D. New Jersey, Camden Vicinage

August 14, 2019

SHAROD THOMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          OPINION

          RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         On June 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.)

         The United States Probation Office prepared a Presentence Investigation Report (“PSI”)[1] 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.)

         The 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.)

         On June 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.)

         II. DISCUSSION

         A. The Amended Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255

         Petitioner 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).

         B. Respondent's Answer

         Respondent 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.

         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. ...


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