United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE.
Lamont Fogle’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.”). 2255 Mot.
(“Def.’s Mot.”) [ECF No. 74]; Suppl. Mot.
to Vacate J. under 28 U.S.C. § 2255 (“Suppl.
Mot.”) [ECF No. 87]. Fogle’s career offender
enhancement was based, in part, on a prior conviction for
D.C. attempted robbery,  which Fogle 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, Fogle’s motion will be
dismissed as untimely under 28 U.S.C. § 2255(f).
sold 0.82 grams of crack cocaine in three back-to-back
controlled buys to undercover police officers in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Suppl.
Mot. at 5; Judgment (“J.”) [ECF No. 40] at 1. He
was sentenced to 280 months’ incarceration based on
conclusions that he was subject under 21 U.S.C. § 851 to
enhanced penalties based on a prior conviction and that he
qualified as a career offender under the 2004 U.S. Sentencing
Guidelines. J. at 2; Sentencing Tr. [ECF No. 87-1] at
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 Fogle’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
Id. § 4B1.2(a). Fogle’s challenge here
focuses on the application of the provision’s residual
career offender enhancement was based on two prior
convictions: a 1995 conviction for Maryland first-degree
burglary and a 2001 conviction for D.C. attempted robbery.
Mot. at 6–7. Designation as a career offender under the
career offender provision’s residual clause raised
Fogle’s offense level from 18 to 34 and his criminal
history category from III to VI. Id. at 7. As a
result, Fogle’s advisory guidelines range increased
from 33–41 months to 262–327 months. Id.
The Court imposed a sentence of 280 months’
imprisonment, noting that the defendant had “a rather
unbroken record of criminal activity” in his
thirty-three years of life. Sentencing Tr. at 21:7–10,
years following Fogle’s conviction and sentencing, the
residual clause of the career offender guideline has been
challenged-but not invalidated. An identically worded
residual clause provision in the Armed Career Criminal Act
(the “ACCA”) was held unconstitutionally vague in
2015, Johnson v. United States, 135 S.Ct. 2551, 2563
(2015), and the U.S. Sentencing Commission shortly thereafter
removed the residual clause from the career offender
provision of the Guidelines Manual going forward, U.S.S.G.,
Suppl. to App. C, amend. 798 at 121 (U.S. Sentencing
Comm’n 2018). For a time, it seemed possible that the
residual clause in the Guidelines, too, might be held
unconstitutional. But in March 2017, the Supreme Court
foreclosed this possibility in Beckles v. United
States, 137 S.Ct. 886 (2017), 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. Id. at 890,
894–95. As the law stands today, then, the residual
clause of the career offender guideline is not void for
the holding in Beckles, Fogle elected to proceed
with his § 2255 motion. The government opposed the
motion. See Opp’n. The Court heard argument on
the § 2255 motion on June 7, 2019, and both sides filed
supplemental briefs shortly thereafter on the issue of
whether Fogle might alternatively be entitled to relief via a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Post-Hr’g Mem. Regarding 28 U.S.C. § 2241
(“Def.’s Post-Hr’g Mem.”) [ECF No.
98]; United States’ Resp. to Def.’s
Post-Hr’g Mem. [ECF No. 99]. Fogle also filed an
emergency motion for relief under the First Step Act of 2018,
see Emergency Mot. to Reduce Sentence Pursuant to
the First Step Act of 2018, [ECF No. 100], which the Court
denied on September 24, 2019, see Sept. 24, 2019,
Order [ECF No. 107]. The Court has carefully considered the
positions and filings of all parties, and this case is now
ripe for resolution.
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 here,  either “the date on
which the judgment of conviction becomes final” or
“the date on which the right asserted was initially
recognized by the ...