United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
pending and ready for resolution is a motion filed by
Petitioner Jonathan Nathaniel Price
(“Petitioner”) to correct his sentence under 28
U.S.C. § 2255 (ECF No. 63). The court now rules, no
hearing being deemed necessary. Local Rule 105.6. For the
following reasons, the motion to correct sentence will be
20, 2009, a grand jury in the District Court of Maryland
returned an indictment charging Petitioner with one count of
possession of a firearm by a convicted felon on June 4, 2009
in violation of 18 U.S.C. § 922(g)(1). (ECF No. 1). The
Government filed a superseding information on December 2,
2009, adding an additional count of possession of a firearm
by a convicted felon on July 15, 2009. (ECF No. 26).
Petitioner waived indictment on December 4, 2009, and the
court held a guilty plea hearing. (ECF No. 30). Petitioner
pled guilty to both counts of the superseding information
pursuant to a written plea agreement. (ECF No. 48-1, at 1).
At sentencing on May 3, 2010, the court adopted the
presentence report which found that Petitioner's
conviction of robbery with a deadly weapon qualified as a
“crime of violence” under U.S.S.G. §
4B1.2(a). Petitioner was sentenced to a total term of
imprisonment of 132 months - consisting of 120 months on
count one of the superseding information and a consecutive
term of twelve (12) months on count two - to be followed by
three (3) years of supervised release. (ECF No. 42).
Petitioner did not appeal.
filed his first motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 on May 2, 2011
(ECF No. 46) which was denied on February 23, 2015 (ECF Nos.
57 and 58).
2015, 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 then filed the instant
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. 60). The United States
Court of Appeals for the Fourth Circuit granted authorization
for Petitioner to file a second or successive petition on
June 27, 2016. (ECF No. 62).
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 Federal Public
Defender informed Petitioner that in light of
Beckles, it would no longer be able to represent
him. On September 25, 2017, the Federal Public Defender filed
a motion to withdraw as counsel (ECF No. 63), which this
court granted (ECF No. 64).
only claim is that under Johnson, the residual
clause that this court applied at sentencing is void for
vagueness. If correct, the court would then have to determine
whether Petitioner's robbery conviction qualifies as a
“crime of violence” under the remaining
“enumerated offenses” clause or
“force” clause of U.S.S.G. § 4B1.2(a).
Federal Public Defender stated in its motion to withdraw as
counsel, in light of Beckles this argument is
without merit. As the Beckles court stated,
“[b]ecause 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. 63) will
foregoing reasons, the motion to correct sentence under 28
U.S.C. § 2255 filed by Petitioner will be denied.
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability 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 (4thCir.
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. §
review of the record, the court finds that Petitioner does
not satisfy the above standards. Accordingly, the court will