United States District Court, District of Columbia
SEGAL HUVELLE UNITED STATES DISTRICT JUDGE
Ronald C. Harrison, proceeding pro se, has filed a
motion pursuant to 28 U.S.C. § 2255(f)(3) to vacate, set
aside or correct his sentence in light of the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016). (See Mot. Under § 2255(f)(3)
at 2, ECF No. 28.) For the reasons stated herein, the
petition will be denied.
October 4, 2012, pursuant to a Rule 11(c)(1)(C) plea
agreement, defendant entered a plea of guilty to one count of
unlawful possession with intent to distribute five kilograms
or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A)(ii). (Plea Agreement at 1, Oct. 4, 2012,
ECF No. 12.) The offense carried a mandatory minimum sentence
of 10 years of imprisonment, and the plea agreement provided
that defendant and the government agreed that a total
sentence of 15 years (180 months) imprisonment was
appropriate. (Id. at 2.) According to
defendant's presentence report (“PSR”), if he
were to be sentenced under the then-applicable Sentencing
Guidelines, he would have been treated as a “career
offender, ” see U.S.S.G. § 4B1.1,
resulting in a total offense level of 34,  a criminal
history category of VI, and a sentencing range of 262-327
months. After considering the PSR, the Court accepted the
11(c)(1)(C) plea agreement and sentenced defendant to 180
months imprisonment to be followed by 60 months of supervised
release. (Judgment in a Criminal Case, Dec. 18, 2012, ECF No.
20.) Defendant did not file a direct appeal; nor has he
previously filed a motion pursuant to 28 U.S.C. § 2255.
seeks § 2255 relief now based on the Supreme Court's
June 23, 2016 decision in Mathis v. United States.
Mathis v. United States, the Court held that for
purposes of determining whether a prior conviction qualifies
as a predicate offense under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), the underlying statute of
conviction is “divisible” and the “modified
categorical” approach is available only if it lists
“elements” in the alternative, but not if it
merely lists alternative means of satisfying one (or
more) of its elements. Mathis, 136 S.Ct. at 2247-48.
If the statute is not “divisible, ” then the
traditional categorical approach must be used and a
conviction under the statute will only count as a predicate
offense under the ACCA if the elements are “the same
as, or narrower than, those of the generic offense.”
Id. at 2250. Applying that distinction to the state
law burglary statute at issue in Mathis, the Court
held that a “modified categorical approach” could
not be applied to determine whether the defendant had been
convicted of a “crime of violence” under the ACCA
because the statute listed “means, ” not
“elements, ” in the alternative.
on Mathis, defendant argues (1) that his two prior
convictions in the District of Columbia for distribution of
cocaine do not qualify as convictions for “a controlled
substance offense” under U.S.S.G. § 4B1.1 because
the underlying statute is not divisible and the conduct
criminalized is broader than the generic
offense; and (2) absent the career offender
enhancement, he would have had an offense level of 31, a
criminal history category of IV, and a sentencing range of
151-188 months and never would have agreed to a 180-month
arguendo that defendant is correct is his belief
that his prior convictions would not qualify him as a
“career offender” under § 4B1.1, he is
nonetheless not entitled to relief. Defendant's motion is
filed under § 2255(f)(3), which allows a § 2255
motion to be filed within one year of “the date on
which the right asserted was initially recognized by the
Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3)(emphasis added). Defendant filed his motion
within one year of the Mathis decision, but the
Supreme Court made crystal clear in Mathis itself
that its decision was not based on a “newly
recognized” right, but rather dictated by
Our precedents make this a straightforward case. For more
than 25 years, we have repeatedly made clear that application
of ACCA involves, and involves only, comparing elements.
Courts must ask whether the crime of conviction is the same
as, or narrower than, the relevant generic offense. They may
not ask whether the defendant's conduct-his particular
means of committing the crime-falls within the generic
definition. And that rule does not change when a statute
happens to list possible alternative means of commission:
Whether or not made explicit, they remain what they ever
were-just the facts, which ACCA (so we have held, over and
over) does not care about.
136 S.Ct. at 2257. Mathis, thus, cannot be the basis
for a claim under § 2255(f)(3). See also Dawkins v.
United States, 829 F.3d 549, 551 (7th Cir. 2016);
United States v. Taylor, 672 F. App'x 860,
864-65 (10th Cir. 2016); Sandlain v. United States,
No. 14-CR-20283, 2017 WL 2002005, at *5 (E.D. Mich. May 12,
2017); Thompson v. United States, No.
3:03-CR-382-G-01, 2017 WL 1629141, at *2 (N.D. Tex. Apr. 13,
2017), report and recommendation adopted, No.
3:03-CR-382-G, 2017 WL 1550528 (N.D. Tex. May 1, 2017);
Dimott v. United States, Nos. 2:06-cr-26,
2:16-cv-347, 2016 WL 6068114, at *3 (D. Me. Oct. 14, 2016);
Blackwell v. United States, No. 4:10-cr-00012, 2016
WL 5849384, at *5 (W.D. Va. Oct. 6, 2016). To the extent
defendant wanted to raise the claim he seeks to bring now,
the time for doing so expired one year after the date his
conviction became final.
and for the reasons stated above, the Court will deny
defendant's § 2255 motion. A separate ...