United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
October 7, 2011, Randolph Kenneth Danson pleaded guilty to
one count of conspiracy to participate in a racketeer
influenced corrupt organization in violation of 18 U.S.C.
§ 1962(d). On December 21, 2011, Mr. Danson was
sentenced to 192 months' (16 years) incarceration, which
was the number of months agreed to by the parties in his Rule
11(c)(1)(C) plea. Mr. Danson now moves pro se under
28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence due to a change in the United States Sentencing
Guideline used to calculate his Guidelines sentencing range.
Setting aside the question of whether Mr. Danson's
sentence was based on the Guidelines and can be altered
through a § 2255 motion, the Court finds that there are
no relevant changes in the Guidelines and therefore will deny
the motion for a reduction in sentence.
BACKGROUND AND JURISDICTION
March 10, 2010 a grand jury returned a six-count indictment
against thirteen defendants and charged Mr. Danson in Count
One, Conspiracy to Distribute and Possess with Intent to
Distribute PCP, Herion, Cocaine, and Cocaine Base, and Count
Four, Maintaining Drug-Involved Premises. Indictment [Dkt.
3]. Six months later a grand jury returned a 63-count
superseding indictment against the same defendants, which
charged Mr. Danson in Counts 1, 2, 26, 27, 31, 43, 48, and
56. Superseding Indictment [Dkt. 88]. On October 7, 2011, Mr.
Danson pleaded guilty to Count Two, Conspiracy to Participate
in a Racketeer Influenced Corrupt Organization (RICO), in a
wired, Rule 11(c)(1)(C) plea with Defendant Timothy Moon.
Plea Agreement [Dkt. 290]. In accepting the plea, Mr. Danson
agreed to a sentence of 192 months' (16 years)
incarceration. Id. ¶ 5.
plea hearing, Mr. Danson agreed to the following facts
surrounding his involvement in the RICO conspiracy.
See Factual Proffer [Dkt. 291]. Beginning in or
about 2006 and continuing until March 11, 2010, Mr. Danson
was a member of an enterprise principally located in the
District of Columbia whose objective was to “obtain as
much money and things of value as possible through the
trafficking of controlled substances, including PCP, heroin,
cocaine, cocaine base, and marijuana.” Id.
¶¶ 1, 3. In order to maintain a marketplace for the
enterprise's drug trafficking, the enterprise also
committed “acts of murder, armed assault, robbery and
other acts of violence.” Id. ¶ 3. The
leader of the enterprise was Mark Pray. Id. ¶
furtherance of the enterprise, Mr. Danson “sold
wholesale and retail amounts of PCP and other
narcotics” and, beginning in December 2009, he
“also began running a ‘stash house.'”
Id. ¶ 8(a). Between December 2009 and March
2010 Mr. Danson sold narcotics to customers of the enterprise
out of the stash house. See id. ¶¶ 8(e),
(f), (h), (i), (k). Mr. Danson acknowledged that
“during the course of the conspiracy, he [was]
accountable for at least 3 but less than 10 kilograms of a
mixture or substance of PCP.” Id. ¶ 10.
sentencing, a Presentence Investigation Report (PSR) was
prepared by the United States Probation Office of the
District of Columbia. In that report the Probation Officer
described Mr. Danson's criminal history and calculated
the applicable United States Sentencing Guidelines (USSG or
Guidelines) range, including the offense score and criminal
history category. The Probation Officer determined that Mr.
Danson qualified for a three-level enhancement to the base
offense level because he met the criteria for “career
offender” under USSG § 4B1.1, which resulted in a
final offense score of 34. PSR [Dkt. 307] at
15-16. As a result of the “career
offender” designation, Mr. Danson was also
automatically moved to criminal history category VI.
Id. at 20. Therefore, Mr. Danson's applicable
Guidelines range was 262 to 327 months. Id. at 28.
On December 21, 2011, the Court accepted Mr. Danson's
Rule 11(c)(1)(C) plea and sentenced him to 192 months'
and 2016, the United States Supreme Court considered two
challenges to career offender designations in Johnson v.
United States, 135 S.Ct. 2551 (2015) and Beckles v.
United States, 137 S.Ct. 886 (2017). In
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminals Act (ACCA) violates the
Due Process Clause of the Constitution because it is
unconstitutionally vague. See 135 S.Ct. at 2557. The
ACCA provides for an increased mandatory minimum sentence if
a defendant “has three or more earlier convictions for
a ‘serious drug offense' or a ‘violent
felony.'” Id. at 2555 (quoting 18 U.S.C.
§ 924(e)(1)). The residual clause is part of the
definition of “violent felony” and states that a
violent felony includes “any crime punishable by
imprisonment for a term exceeding one year . . . that . . .
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B). The Supreme Court found the residual clause was
unconstitutionally vague because it leaves “grave
uncertainty about how to estimate the risk posed by a
crime” and “how much risk it takes for a crime to
qualify as a violent felony.” Johnson, 135
S.Ct. at 2557-58.
Beckles, the Supreme Court addressed another
residual clause, this time located in the Guidelines'
definition of a “crime of violence.” 137 S.Ct. at
890. Although the residual clause in the Guidelines was
substantially similar to the clause in the ACCA, the Supreme
Court held that the residual clause in USSG §
4B1.2(a)(2) was not void for vagueness because “the
advisory Guidelines are not subject to vagueness challenges
under the Due Process Clause.” Id. The
Guidelines were distinguishable from the ACCA because they
“do not fix the permissible range of sentences, ”
but instead “merely guide the exercise of a court's
discretion in choosing an appropriate sentence within the
statutory range.” Id. at 892.
13, 2016, Mr. Danson filed his initial pro se motion
for relief under § 2255 based on Johnson. June
13, 2016 Mot. [Dkt. 552]. Per the standing order issued by
the United States District Court for the District of
Columbia, the Office of the Federal Public Defender filed an
abridged § 2255 motion on the basis of Johnson
on Mr. Danson's behalf, indicating that an updated motion
would be filed after the Supreme Court issued its decision in
Beckles. See June 20, 2016 Mot. [Dkt. 554].
On April 10, 2017, following the Supreme Court's decision
in Beckles, the Federal Public Defender moved to
withdraw as counsel for Mr. Danson and the Court granted the
motion. See Motion to Withdraw [Dkt. 568]; April 10,
2017 Minute Order. Proceeding pro se, Mr. Danson
filed a supplement to the original § 2255 motion on May
26, 2017. Supp. Mot. [Dkt. 571]. The United States opposed,
Opp'n [Dkt. 575], and Mr. Danson replied. Reply [Dkt.
578]. The motion is ripe for review.
U.S.C. § 2255 permits a defendant to move for the
sentencing court to vacate, set aside, or correct its
sentence on the grounds 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). The
defendant bears the burden of demonstrating entitlement to
relief under § 2255. See United States v. Bell,
65 F.Supp.3d 229, 231 (D.D.C. 2014). Section 2255 motions
must be filed no later than a year after (1) “the
judgment of conviction becomes final, ” (2) any
impediment preventing the filing of the motion is removed,
(3) the Supreme Court newly recognizes a right to review, or
(4) the facts supporting the claim “could have been
discovered through the exercise of due diligence.” 28
U.S.C. § 2255(f).
petitioners are not entitled to discovery as a matter of
course, see Bracy v. Gramley, 520 U.S. 899, 904
(1997), but a court may authorize discovery if good cause
exists, or “where specific allegations before the court
show reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is
entitled to relief.” Id. at 908-09.
defendants do not have a constitutional or statutory right to
counsel during habeas corpus proceedings. See 18
U.S.C. § 3599(a)(2) (creating a statutory right to
counsel for capital defendants in habeas proceedings).
However, a court may provide counsel to a financially
eligible person who is seeking habeas relief if “the