United States District Court, D. Maryland
L. Hollander, United States District Judge.
October 21, 2011, Craig Shepperd, Petitioner, entered a plea
of guilty to Count Seven of an Indictment charging him with
Threatening to Murder a Federal Law Enforcement Officer, in
violation of 18 U.S.C. § 115(a)(1). ECF 23; ECF 24 (Plea
Agreement). In particular, the plea was entered under Rule
11(c)(1)(C), in which the parties jointly agreed to a
sentence of 96 months of imprisonment. ECF 21, ¶ 9. The
parties also agreed that defendant qualified as a Career
Offender under U.S.S.G. § 4B1.1, based on two prior
convictions that allegedly constituted crimes of violence.
ECF 24 at 5.
case was initially assigned to Judge William D. Quarles, Jr.,
who held the sentencing on February 7, 2012. ECF 29; ECF 30
(Judgment); ECF 32 (Amended Judgment); ECF 42 (Sentencing
Transcript). Of relevance here, Judge Quarles
determined at sentencing that Petitioner qualified as a
Career Offender. ECF 42 at 15. He referenced, inter
alia, two distinct prior convictions in Maryland for
second-degree assault and a conviction for possession of
marijuana with intent to distribute. Id. Further,
the Court found that Petitioner had “13 criminal
history points, ” which “place him in Criminal
History Category VI.” ECF 42 at 15. Based on the Career
Offender designation, the Court determined that the total
offense level was 21, rather than 16, with an advisory
sentencing guidelines range of 87 to 96 months of
accordance with the C plea, the Court sentenced the defendant
to 96 months' of imprisonment. Id. at 15-16; ECF
32. The Court reasoned that the defendant's
“somewhat violent history and the nature and conduct
underlying” his offense warranted a sentence at the top
of the advisory guidelines. ECF 42 at 15-16. But, he allowed
Shepperd to serve the sentence concurrent with a State
sentence he was then serving. Id. at 16.
13, 2014, the Federal Public Defender (“FPD”)
filed a Motion to Correct Sentence Under 28 U.S.C. §
2255. ECF 36 (“Motion”). Relying on Descamps
v. United States, 133 S.Ct. 2276 (2013), and United
States v. Royal, 731 F.2d 333 (4th Cir. 2013), cert.
denied, 134 S.Ct. 1777 (2014), Petitioner argued that he
was erroneously found to be a Career Offender on the basis of
his second-degree assault convictions. Id.
2015, in Johnson v. United States, ___ U.S. ___, 135
S.Ct. 2551 (2015), the Supreme Court struck down the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii), ruling that the definition
of a “violent felony” was unconstitutionally
vague. Id. at 2555-57; see also United States v.
Winston, 850 F.3d 667, 680 (4th Cir. 2017) (explaining
Johnson). Thereafter, on May 25, 2016, the FPD filed
another motion on behalf of Petitioner under 28 U.S.C. §
2255. ECF 45 (“Supplemental Motion”). Relying on
Johnson, the FPD argued that Petitioner no longer
qualified as a Career Offender because the underlying offense
of threatening a federal officer and the prior second-degree
assault convictions do not constitute crimes of violence.
Id. at 1-2.
government's request (ECF 40), the case was stayed. ECF
March 6, 2017, the Supreme Court decided Beckles v.
United States, ___U.S. ___, 137 S.Ct. 886 (2017). In
Beckles, the Court determined that the advisory
sentencing guidelines are not subject to Johnson
challenges. Subsequent to that decision, on August 24, 2017,
the FPD asked Petitioner whether he wanted to withdraw his
motions. ECF 47 at 2, 3. Petitioner was also advised that the
FPD intended to submit a request to withdraw as counsel and,
if granted, Petitioner would be proceeding without counsel.
Id. at 3. Petitioner did not respond to either
motion. Id. On September 18, 2017, the FPD filed a
Motion to Withdraw as Counsel (ECF 47), which this Court
granted. ECF 48.
before this Court are Petitioner's Motion and
Supplemental Motion under 28 U.S.C. § 2255. ECF 36; ECF
45. The government did not respond. No hearing is necessary
to resolve the motions. See Local Rule 105.6 (D. Md.
2016); 28 U.S.C. § 2255(b). For the reasons stated
herein, I shall deny both motions.
claims that under Descamps, Royal, and
Johnson, he does not qualify as a Career Offender
under U.S.S.G. § 4B1.1 because his underlying offense
and his two prior second-degree assault convictions are not
crimes of violence. ECF 36; ECF 45.
§ 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at
least two prior ...