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United States v. Small

United States District Court, District of Columbia

July 22, 2019

DAMIEN SMALL, Defendant.


          John D. Bates United States District Judge.

         Damien Small's motion pursuant to 28 U.S.C. § 2255 challenges his designation as a career offender under the residual clause of § 4B1.2 in the 2010 U.S. Sentencing Guidelines Manual (“U.S.S.G.”). Mot. under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Defs.' Mot.”) [ECF No. 93]; Suppl. Mot. to Vacate J. under 28 U.S.C. § 2255 (“Suppl. Mot.”) [ECF No. 105]. Small's career offender enhancement was based in part on a prior conviction for D.C. attempted robbery, which Small asserts is not a qualifying offense for designation as a career offender because it is not a “crime of violence” under that provision. For the reasons that follow, Small's motion must be dismissed as untimely under 28 U.S.C. § 2255(f).


         Small served as a getaway car driver in a 2010 bank robbery. Suppl. Mot. at 5. Small was sentenced to 108 months' incarceration for bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a) and 2. J. in a Crim. Case [ECF No. 65] at 1-2.

         Small was sentenced as a career offender under the 2010 U.S. Sentencing Guidelines. Suppl. Mot. at 2. The career offender provision of the U.S. Sentencing Guidelines directs a sentencing court to increase the base offense level of a defendant convicted of a felony crime of violence or controlled substance offense if the court finds that the defendant has two or more prior felony convictions for crimes of violence, controlled substance offenses, or a combination of both. U.S.S.G. § 4B1.1(a) (U.S. Sentencing Comm'n 2010). At the time of Small's sentencing, a prior offense qualified as a crime of violence if it:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “force clause”], or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the “enumerated offense clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”].

Id. § 4B1.2(a).[1] Small's challenge here focuses on the application of the provision's residual clause.

         Small's career offender enhancement was based on two prior convictions: a 1999 Maryland robbery and a 1999 District of Columbia attempted robbery. Suppl. Mot. at 6. Designation as a career offender under the career offender provision's residual clause raised Small's offense level from 21 to 29[2] and his criminal history category from IV to VI. As a result, Small's advisory guidelines range increased from 46-57 months to 151-188 months. Suppl. Mot. at 2. With respect to the two offenses that qualified Small as a career offender, the Court noted at sentencing that these offenses were essentially “determinative with respect to sentencing” because they made him “a career offender under the sentencing guidelines, which has a huge impact in this case.” Tr. of Sentencing [ECF No. 94] at 26:8-18. Nevertheless, the Court varied downwards to 108 months based on its conclusion that although a substantial period of incarceration was warranted, the Guidelines calculation overstated the significance of Small's criminal history (and, as a consequence, his career offender status). See id. at 30:5-19 (noting that the recommended sentence of “151 months or more would be more than is necessary to satisfy the various criminal justice interests reflected in § 3553(a)” but that a “sentence down in the 60-month range” would “ignor[e] the career offender provisions”).

         In the years following Small's conviction and sentencing, the residual clause of the career offender guideline has been challenged and discredited-but not invalidated. In 2015, the Supreme Court examined an identically worded residual clause in the career offender provision of the Armed Career Criminal Act (the “ACCA”) and concluded that the residual clause in that statute was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015).[3] Shortly thereafter, the U.S. Sentencing Commission made the decision “as a matter of policy” to remove the residual clause from the Guidelines, explaining that “the residual clause . . . implicates many of the same concerns cited by the Supreme Court in Johnson.” U.S.S.G., Suppl. to App. C, amend. 798 at 121 (U.S. Sentencing Comm'n 2018).

         But in March 2017, the Supreme Court issued its opinion in Beckles v. United States, in which it declined to extend its reasoning in Johnson to the residual clause of the career offender guideline, observing that “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, ” and hence holding that the residual clause of the career offender guideline was not void for vagueness. 137 S.Ct. 886, 890, 894-95 (2017). Beckles left Small and many others who had received enhanced sentences under the Guidelines' residual clause in limbo. The precise language used in the residual clause of the career offender guideline had been held in Johnson to be “so shapeless a provision” that it was a “failed enterprise” for a court “to derive meaning” from it. Johnson, 135 S.Ct. at 2560 (discussing identical language in ACCA residual clause). Nevertheless, the Supreme Court in Beckles scrutinized the advisory Guidelines' residual clause and upheld its constitutionality, at least as to the challenge on vagueness grounds, because of the discretion built into the advisory Guidelines regime. Beckles, 137 S.Ct. at 894-95. As the law stands today, courts are unclear as to how to interpret the language of this residual clause, but the residual clause of the career offender guideline is not void for vagueness.

         Notwithstanding the holding in Beckles, Small elected to proceed with his § 2255 motion. The government has opposed. United States' Opp'n to Def.'s Mot. and Suppl. Mot. (“Opp'n”) [ECF No. 113]. In the meantime, Small completed his term of imprisonment on May 7, 2019, and began serving a term of supervised release. The Court heard argument on the § 2255 motion on May 17, 2019, and both sides filed supplemental briefs shortly thereafter. United States' Post-Hr'g Suppl. to Opp'n [ECF No. 135]; Post-Hr'g Mem. in Supp. of Def.'s Mot. & Suppl. Mot. [ECF No. 136]. The Court has carefully considered the positions and filings of all parties, and this case is now ripe for resolution.


         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) authorizes federal prisoners to move to vacate, set aside, or correct a sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). A prisoner's ability to bring such a motion is subject to a strict one-year time limitation triggered by, as relevant to Small's motion, [4] either “the date on which the judgment of conviction becomes final” or “the date on which the right asserted was initially recognized by ...

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