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United States v. Smith

United States District Court, District of Columbia

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDRE SMITH, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Presently before the Court is Defendant Andre Smith's [21] Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The Defendant, who is proceeding pro se, requests that the Court reconsider or reduce his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the "residual clause" found in the definition of the term "violent felony" in the Armed Career Criminal Act (ACCA) was unconstitutionally vague. The Defendant further argues that Sessions v. Dimaya, 138 S.Ct. 1204 (2018) applies to his case because Dimaya extended the vagueness doctrine announced in Johnson "to other federal statutes including the one in the instant case." Def s Reply to Govt's Opp'n, ECF No. [25]. Upon review of the parties' submissions, [1] the relevant authorities, and the record as a whole, the Court finds that the Defendant is not entitled to the requested relief. Accordingly, the Court shall DENY the Defendant's Motion to Vacate Sentence.

         I. BACKGROUND

         A. Factual Background

         Defendant pled guilty to Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1), and to Possession of a Firearm During the Commission of a Crime of Violence or Dangerous Offense, in violation of 22 D.C. Code § 4504(b). Plea Agreement, ECF No. [10]. The underlying facts in this case to which the Defendant agreed in a signed statement and during the plea colloquy under oath are as follows: On November 26, 2012, at approximately 12:17 a.m., MPD Sixth District Police Officers in full uniform were driving their marked police cruiser eastbound on Ridge Road, S.E. when they saw a Ford Crown Victoria driving toward them from the opposite direction. Gov't Factual Proffer (May 29, 2013) at 3, ECF No. [9]. The car was being driven by the Defendant and there was another individual in the front passenger seat. Id. As the Ford approached the officers, they saw that it only had one functioning headlight. Id. After the Ford passed, the officers made a U-turn to get behind the automobile in order to make a traffic stop. Id. When the officers completed the U-turn, the Ford immediately accelerated and began to flee from the officers. Id. As the officer turned on the emergency lights and siren and pursued the Ford, the Defendant increased his speed and turned right onto Minnesota Avenue. Id. The Defendant was unable to completely negotiate the turn onto Minnesota and struck the curb. Id. The right rear tire of the Ford blew out and the car came to a stop diagonally across Minnesota Avenue. Id. As the officer pulled up behind the Ford, the Defendant and the front seat passenger jumped out of the automobile and ran in opposite directions. Id. As the Defendant got out of the car, he was holding a dark colored pistol in his hand. Id. Another officer arrived in a marked patrol car and drove after the Defendant, crossing over the median strip onto the opposite side of Minnesota Avenue. Id. That officer was directly behind the Defendant when the Defendant turned around and pointed his pistol directly at the officer and continued to run with the pistol still in his hand. Gov't Factual Proffer (May 29, 2013) at 3-4, ECF No. [9]. The Defendant ran into a parking lot of a business at the corner of Minnesota and Ames Street. Gov't Factual Proffer (May 29, 2013) at 4, ECF No. [9]. As the Defendant continued to flee, another officer pulled his patrol car in front of the Defendant at the apartment building and the Defendant turned around and ran back up the hill. Id. The Defendant still had the pistol in his hand as he was chased by the officers, and he unsuccessfully tried to throw it into a dumpster by the apartment building. Id. The Defendant ran up the hill and slipped and fell to the ground. Id. Moments later, the Defendant turned onto his stomach but propped himself up on his hands as if he was going to get up and run again. Id. The officer holstered his weapon and jumped on the Defendant's back and placed him in handcuffs. Id. The pistol that the Defendant dropped was a Springfield Arms .40 caliber semi-automatic loaded with 18 rounds of ammunition. Id.

         B. Written Plea Agreement

The Defendant signed a written plea agreement on May 29, 2013. See Gov't Plea Agreement (May 29, 2013), ECF No. [10]. The agreement contained a section entitled "Andre Smith's Obligations, Acknowledgements, and Waivers" which included Defendant's agreement to admit guilt and enter a plea of guilty to Count One and Count Three of the pending Indictment, charging Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1) and a consecutive sentence for Possession of a Firearm During the Commission of a Crime of Violence or Dangerous Offense, in violation of 22 D.C. Code § 4504(b).

Gov't Plea Agreement (May 29, 2013) at 1, ECF No. [10], The plea agreement also contained a signature page with a heading entitled "Defendant's Acceptance." The paragraphs under this heading read as follows:

I have read this five page plea agreement and have discussed it with my attorney, Shawn Moore, Esquire. I fully understand this agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound. No. threats have been made to me nor am I under the influence of anything that could impede my ability to understand this agreement fully. I am pleading guilty because I am in fact guilty of the offense identified in paragraph one.
I reaffirm that absolutely no promises, agreements, understandings, or conditions have been made or entered into in connection with my decision to plead guilty except those set forth in this plea agreement. I am satisfied with the legal services provided by my attorney in connection with this plea agreement and matters related to it.

Gov't Plea Agreement (May 29, 2013) at 5, ECF No. [10].

         The plea agreement also specifically advised that "[the] client understands that the sentence in this case will be imposed in accordance with 18 U.S.C. Sections 3553(a) and 3553(c) through (f)," "that the sentence is to be imposed is a matter solely within the discretion of the Court," and "that the Court is not obligated to follow any recommendation of the Government at the time of sentencing." Gov't Plea Agreement (May 29, 2013) at 2, ECF No. [10].

         C. Sentencing

         On August 13, 2013, this Court committed Defendant to the custody of the Bureau of Prisons for a term of thirty-seven months (Count One), followed by a term of sixty months (Count Three), both with credit for time served. These consecutive terms of incarceration were each to be followed by a thirty-six-month term of supervised release. The two terms of supervised release were to run concurrently, following the ...


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