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United States v. Fogle

United States District Court, District of Columbia

September 30, 2019

UNITED STATES OF AMERICA
v.
KEITH LAMONT FOGLE, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES UNITED STATES DISTRICT JUDGE.

         Keith 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].[1] Fogle’s career offender enhancement was based, in part, on a prior conviction for D.C. attempted robbery, [2] 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).

         BACKGROUND

         Fogle 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 6:8–9:6.

         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 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 “residual clause”].

Id. § 4B1.2(a).[3] Fogle’s challenge here focuses on the application of the provision’s residual clause.

         Fogle’s 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.

         Suppl. Mot. at 6–7. Designation as a career offender under the career offender provision’s residual clause raised Fogle’s offense level from 18[4] 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, 28:9-14.

         In the 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 vagueness.

         Notwithstanding 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.

         LEGALSTANDARD

         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 here, [5] either “the date on which the judgment of conviction becomes final” or “the date on which the right asserted was initially recognized by the ...


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