United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
before the Court is Defendant Andre Smith's  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. . Upon review of the
parties' submissions,  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.
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. . 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. . 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. .
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. . 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.
Written Plea Agreement
The Defendant signed a written plea agreement on May 29,
2013. See Gov't Plea Agreement (May 29, 2013),
ECF No. . 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. ,
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
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. .
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. .
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