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Shepperd v. United States

United States District Court, D. Maryland

September 28, 2017

UNITED STATES OF AMERICA, Respondent. Civ. Action No. ELH-14-1925


          Ellen L. Hollander, United States District Judge.

         On 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.

         The 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).[2] 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 incarceration.

         In 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.

         On June 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.

         In June 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.

         At the government's request (ECF 40), the case was stayed. ECF 41.

         On 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.

         Pending 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.


         Petitioner 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.

         U.S.S.G. § 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 ...

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