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United States v. Upshur

United States District Court, District of Columbia

February 25, 2019

UNITED STATES OF AMERICA
v.
DARREN UPSHUR, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE

         The defendant, Darren Upshur, is currently serving a 188-month term of imprisonment that was imposed by this Court following his plea of guilty to one count of unlawful distribution of fifty grams or more of cocaine base, also known as crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii) (2006). See Plea Agreement at 1 (Nov. 9, 2011); Judgment in a Criminal Case ("Judgment") at 2 (Feb. 15, 2012). Currently pending before the Court are the defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Def.'s Mot.") and his Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255 ("Def.'s Supp. Mot."), which "move[] this Court to vacate his sentence and enter an amended judgment sentencing him to time-served, in light of the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015)." Def.'s Supp. Mot. at 1. Upon consideration of the parties' submissions, [1] the Court concludes that it must deny the defendant's motion for the reasons explained below.

         I. BACKGROUND

         After the defendant entered his guilty plea, the United States Probation Office (the "Probation Office") submitted to the Court its final Presentence Investigation Report (the "Report" or "PSR"), which included a sentencing guidelines calculation pursuant to the United States Sentencing Guidelines (the "Sentencing Guidelines" or "USSG"). See PSR at 1 (Jan. 18, 2012). The Report reflected a total criminal history score of six points based on two prior felony convictions: (1) a 1999 distribution of heroin conviction adjudicated in the Superior Court of the District of Columbia ("Superior Court"), see id. ¶ 36, and (2) a 2000 attempted robbery conviction also adjudicated in Superior Court, see id. ¶ 37.[2] Based on these convictions, the Probation Office determined that the defendant qualified as a career offender pursuant to § 4B1.1(a) of the Sentencing Guidelines. See id. ¶ 24.[3] Thus, although the Probation Office recognized that "a criminal history score of six [would generally have] establish[ed] a criminal history category of JH," Id. ¶ 39, because "[t]he defendant [wa]s a career offender[, ] [ ] the criminal history category [wa]s VI," id. ¶ 40. Accordingly, "[b]ased upon a total offense level of 31 and a criminal history category of VI," the Report calculated "the [applicable] guideline imprisonment range [a]s 188 months to 235 months." JA ¶ 100.

         The Court sentenced the defendant on February 1, 2012. See Judgment at 1. At the sentencing hearing, the Court "accept[ed] the [Probation Office's final Report] and [its] Guidelines [calculations] as accurate" without any objection by defense counsel, Def.'s Supp. Mot., Exhibit ("Ex.") A (Transcript of Sentencing Before the Honorable Reggie B. Walton (Feb. 1, 2012) ("Sentencing Tr.")) 3:8-10, 17-18, and, upon "consider[ing] all the various factors in deciding [ ] the appropriate sentence [ ], including the Guideline sentence," it concluded that a sentence at "the bottom end of the Guidelines" was appropriate, Id. , Ex. A (Sentencing Tr.) 7:17- 21. Accordingly, the Court sentenced the defendant to a 188-month term of imprisonment. See Judgment at 2.

         Subsequently, on June 26, 2015, the Supreme Court issued its decision in Johnson. See ___ U.S. at ___, 135 S. Q. at 2551. On June 21, 2016, the defendant filed an abridged motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (2012), see generally Def.'s Mot., in accordance with the Standing Order issued by the Chief Judge of this Court, see Standing Order at 2 (June 2, 2016) (authorizing prisoners seeking post-conviction relief based on Johnson "to file an abridged motion[] pursuant to 28 U.S.C. § 2255[]... by June 26, 2016"). The defendant's motion, as supplemented on October 31, 2017, see Def.'s Supp. Mot. at 1, is the subject of this Memorandum Opinion.

         II. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act (the "AEDPA") permits a federal prisoner in custody pursuant to a sentence imposed by a federal court to "move the court which imposed the sentence to vacate, set aside[, ] or correct the sentence" "upon the ground 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).

         However, it "limits the time in which a prisoner may bring such a motion," United States v. Cicero, 214 F.3d 199, 200 (D.C. Cir. 2000), providing that

[a] [one]-year period of limitation shall apply to [any such] motion . .. [, and t]he limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)

         III. ANALYSIS

         Under the version of the Sentencing Guidelines in effect when the defendant was sentenced,

[a] defendant [wa]s a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

         USSG § 4B1.1(a) (2011). The Sentencing Guidelines further defined a ...


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