United States District Court, D. Maryland
Richard D. Bennett United States District Judge
November 13, 2009, Petitioner Keith Stevenson
('Petitioner" or "Stevenson)) pled guilty to
possession with intent to distribute cocaine, in violation of
21 U.S.C § 841(a)(1) (ECF No. 39.) During
Petitioner's sentencing hearing, mis Court found that
Petitioner's prior convictions for attempted robbery with
a dangerous weapon and robbery with a dangerous weapon
qualified as "crimes of violence" under United
States Sentencing Guideline (U.S.S.G.) § 4B1.2. (a). As
a result, Petitioner was deemed a career offender and was
then sentenced to a term of one-hundred and twenty (120)
years later, the Supreme Court in Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551 (2015) struck down
the residual clause of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B)(ii) as unconstitutionally
vague. The Office of the Federal Public Defender (OFPD) then
filed a motion on behalf of Petitioner under 28 U.S.C §
2255, arguing that because the "Career Offender"
provision in the Sentencing Guidelines includes the identical
residual clause as that struck down in Johnson, it
is also void for vagueness. (ECF No. 67.)
2017, however, the Supreme Court held in Beckles v.
United States, __ U.S. __, 137 S.Ct. 886 (2017) that the
advisory guidelines were not subject to Johnson
challenges. Subsequent to that decision, the OFPD informed
Petitioner that in light of Beckles it would no
longer be able to represent him. On September 18, 2017, the
OFPD filed a Motion to Withdraw as Counsel (ECF No. 69),
which this Court granted. (ECF No. 70.)
has since been released from custody. However, still pending
before this Court is Petitiones's Motion to Correct
Sentence Under 28 U.S.C. § 2255. (ECF No. 67.) The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, Petitioner Stevenson's
Motion to Correct Sentence Under 28 U.S.C. § 2255 (ECF
No. 67) is DENIED.
only claim is that under Johnson, the residual
clause that this Court applied while sentencing Petitioner is
void for vagueness. Therefore, this Court must determine
whether Petitioner's prior convictions for attempted
robbery with a dangerous weapon and robbery with a dangerous
weapon quality as crimes of violence under the remaining
"enumerated offense"" clause or
"force" clause of U.S.S.G § 4B1.2(a).
OFPD stated in its Motion to Withdraw as Counsel, however, in
light of Beckles this argument is without merit. As
the Beckles Court stated, "[b]ecauee the
advisory Sentencing Guidelines are not subject to a due
process vagueness challenge, § 4B1.2(a)'s residual
clause is not void for vagueness." 137 S.Ct. at 897. For
this reason, Petitioner's pending Motion to Vacate (ECF
No. 67) is DENIED.
reason stated above, Petitioner Stevenson's Motion to
Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 67) is
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is required to issue or deny a
certificate of appeal ability when it enters a final order
adverse to the applicant. A certificate of appealability is a
"jurisdictional prerequisite" to an appeal from the
court's earlier order. United States v. Hadden,
475 F.3d 652, 659 (4th Cir. 2007). A certificate of
appealability may issue "only if the applicant has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner's motion on its merits, a petitioner
satisfies this standard by demonstrating that reasonable
jurists would find the court's assessment of the
constitutional claims debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also
Miller-EI v. Cockrell, 537 U.S. 322, 336-38 (2003).
Because reasonable jurists would not find Stevenson's
claims debatable, a certificate of appealability is DENIED.
separate Order follows.