UNITED sTA'TEs DISTRICT CoURT F ]_' |_ E D
FoR THE DISTRICT oF COLUMBIA

 

JUN 28 2018
UN]TED STATES ()F AN[ER[CA, Clerk, U.S. District and
Bankrupt€y Courts
Plaintiff,
V' Criminal No. 13-022 (cKK)
(Civil Action No. 16-1349)

ANDRE SMITH,

Defendant.

 

 

MEMORANDUM oPINION
(June 27, 2018)

Presently before the Court is Defendant Andre Smith"s [21] 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. Unl`ted 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 Sessl`ons 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. [25]. Upon review of the parties’ submissions,1 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.

 

1 Der Mot. to Vacate Sentence, ECF No. [21], Govt.’s Opp’n, ECF No. [24], Def” s Reply to Govt.’s Opp’n, ECF
No. [25], Govt.’s Response to Def’s Reply to Govt.’s Opp’n, ECF No. [28].

l

I. BACKGROUND
A. Factual Background

Defendant 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)(l), 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. [lO]. 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
12117 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. [9]. The car was
being driven by the Defendant and there was another individual in the front passenger seat. Id. As
the F ord 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. Ia’. 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. Ia'. 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
Factu'al Proffer (May 29, 2013) at 3-4, ECF No. [9]. 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. [9]. 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.
B. Written Plea Agreement
The Defendant signed a written plea agreement on May 29, 2013. See Gov’t Plea
Agreement (May 29, 2013), ECF No. [10]. 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. [10].

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. l 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 one.

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. [10].

The 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. [10].

C. Sentencing

On 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 consecutive terms of incarceration Finally, this Court
ordered Defendant to pay a special assessment of $100 for each count.

D. Present Motion to Vacate Sentence pursuant to 28 U.S. C. § 2255

On June 24, 2016, Defendant filed a motion to vacate his sentence under 28 U. S.C. § 2255.
Def’ s Mot. to Vacate, ECF No. [21]. Defendant alleges that the recent Supreme Court decision

from Johnson v. Um`ted States, 135 S. Ct. 2551 (2015), finding the residual clause of the Armed

Career Criminal Act (ACCA) unconstitutionally vague, is relevant to his case. Defs Mot. to
Vacate at 5, ECF No. [21]. Defendant argues that the Solicitor General in Johnson “provided a
comprehensive list of crimes that would fall to the unconstitutionality of the ACCA’s residual
clause,” and that “§ 22-[4504] was included in this attachment.” Id. Defendant suggests that he
may be innocent of the conviction of possession of a firearm during a crime of` violence where the
assault, in his case, would now be defunct under Johnson. Id. Moreover, Defendant argues that, in
light of the Supreme Court’s recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), “the
vagueness doctrine as viewed in Johnson applies with equal force to other federal statutes
including the one in this instant case.” Def’ s Reply to Govt. ’s Opp’n at 1, ECF No. [25]. Defendant
concludes that this Court should “take notice of the Dimaya decision and permit the Government
to either oppose the request or join Defendant’s motion to vacate the conviction” Def”s Reply to
Govt.’s Opp’n at 2, ECF No. [25].
lI. LEGAL STANDARD

Pursuant to 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes 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, the remedy set forth by § 2255 “does not encompass all claimed errors in
conviction and sentencing.” United States v. Addonl`zio, 442 U.S. 178, 185 (1979). The
circumstances under Which such a motion will be granted “are limited in light of the premium
placed on the finality of judgments and the opportunities prisoners have to raise most of their

objections during trial or on direct appeal.” United States v. Burwell, 160 F. Supp. 3d 301, 308

(D.D.C. 2016). “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle
than Would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless,
“unless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues, and
make findings of fact and conclusions of law With respect thereto.” 28 U.S.C. § 225 5(b). However,
the decision whether to hold a hearing is entrusted to the district court’s discretion, particularly
where, as here, the reviewing judge presided over the proceeding in which the petitioner claims to
have been prejudiced United States v. Morrz`son, 98 F.3d 619, 625 (D.C. Cir. 1996), cert. denied,
520 U.S. 1131 (1997). “If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the petition . . .
Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4.
lII. DISCUSSION

Defendant requests that the Court reconsider his sentence of sixty months incarceration for
Possession of a Firearm During the Commission of a Crime of Violence or Dangerous Offense in
light of the Johnson and Dimaya decisions The Court finds that Defendant’s request shall be
denied for the reasons described herein

The Court first considers whether Defendant’s motion is timely. See United Slates v.
Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000) (“We consider first application of the time limitation
in § 2255 . . . .”). Effective April 24, 1996, in the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Congress enacted a one-year period of limitations on the filing of § 2255
motions through Section 105 of the AEDPA, which amended 28 U.S.C. §2255 to state that:

A 1-year period of limitation shall apply to a motion under this section The
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
government 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).

“In most cases, the operative date from which the limitation period is measured will be the
one identified in” § 2255(f)(1)_the date on which the judgment of conviction became final. Doa'd
v. United States, 545 U.S. 353, 357 (2005). Here, Defendant’s conviction became final in 2013.
Defendant filed this motion on July 21, 2016_well past the one-year limitation period. Thus,
Defendant’s motion is untimely under § 2255(f)(1).

However, Defendant claims that his motion is timely under § 2255(f)(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.”
28 U.S.C. § 2255(f)(3). Consequently, the Court next considers the merits of this argument as it
relates to application of the Armed Career Criminal Act (ACCA) in this case. Under the ACCA, a
defendant convicted of violating § 922(g) is subject to a mandatory minimum sentence of fifteen
years’ imprisonment if the defendant has three prior convictions for a “violent felony,” a “serious
drug offense,” or both. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year, or any act of

juvenile delinquency involving the use or carrying of a firearm, knife, or destructive

device that would be punishable by imprisonment for such term if committed by an
adult, that_

(i) has an element the use, attempted use, or threatened use of
physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another[.]

United States v. Johnson struck down the italicized language_the residual clause_as
unconstitutionally vague because it leaves “grave uncertainty” about “how to estimate the risk
posed by a crime” as well as about “how much risk it takes for a crime to qualify as a violent
felony.” 135 S. Ct. 2551, 23 57-58 (2015). The Court concluded that the clause “denies fair notice
to defendants and invites arbitrary enforcement by judges.” Id., at 2357. In 2016, Welch v. United
States held that “Johnson is . . . a substantive decision and so has retroactive effect under Teague
[v. Lane, 489 U.S. 288 (1989,] in cases on collateral review.” 136 S. Ct. 1257, 1265 (2016).

The ACCA did not play any role in Defendant’s sentence. The ACCA is a federal statute
that is used to enhance sentences in federal criminal cases. In contrast, Possession of a Firearm
During the Commission of a Crime of Violence or Dangerous Offense, under D.C. Code § 22-
4504(b)_the provision that Defendant now challenges-is a substantive offense Moreover, § 22-
4504(b) indicates that “crime of violence” is “defined in § 23-1331(4).” The § 23-1331(4)
definition enumerates specific, concrete offenses that constitute “crime[s] of violence.” Thus, the
vagueness doctrine announced in Johnson is not at issue in Defendant’s case.

Defendant contends that the Supreme Court’s recent decision in Sessions v. Dimaya, 138
S. Ct. 1204 (2018), 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 at 1, ECF No. [25].
However, Dimaya extended the doctrine to 18 U.S.C. § 16(b) because

[Section] 16(b) has the same “[t]wo features” that conspire[d] to make [ACCA’s
residual clause] unconstitutionally vague.” [Johnson], 135 S. Ct., at 2557. It too

“requires a court to picture the kind of conduct that the crime involves in ‘the

ordinary case,’ and to judge whether that abstraction presents” some not-well-

specified-yet-sufficiently-large degree of risk. 135 S.Ct. at 2556-2557. The result

is that § 16(b) produces, just as ACCA’s residual clause did, “more unpredictability

and arbitrariness than the Due Process Clause tolerates.” 135 S. Ct. at 2558.
Dimaya, 138 S. Ct. at 1216.

A residual clause is not included in the definition of “crime of violence” found in D.C.
Code § 22-4504(b). Rather, §22-4504(b) uses the concrete definition of “crime of violence” that
is found in D.C. Code § 23-1331(4). Therefore, Johnson does not apply and the limitation period
must be measured using § 2255(f)(1). Because Defendant’s motion is untimely under § 2255(f)(1),
it is denied.

IV. CONCLUSION

For all of the foregoing reasons, the Court shall DENY Defendant’s [21] Motion to
Vacate Sentence pursuant to 28 U.S.C. § 2255. Furthermore, no Certificate of Appealability shall
issue from this Court. To the extent the Defendant intends to file an appeal, he must seek a
Certificate of Appealability from the United States Court of Appeals for the District of Columbia

Circuit in accordance with Federal Rule of Appellate Procedure 22.

An appropriate order accompanies this memorandum opinion

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

