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Bruce v. United States

United States District Court, D. Maryland, Southern Division

April 16, 2019

STEVEN BRUCE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          George J. Hazel, United States District Judge.

         Pending before the Court is Petitioner Steven Bruce's Motion to Vacate, Set Aside, or Correct a Sentence. ECF No. 67.[1] No. hearing is necessary. See 28 U.S.C. § 2255(b). For the following reasons, Petitioner's Motion is denied.

         I. BACKGROUND

         On February 9, 2015, Petitioner pled guilty to a three count superseding indictment, charging him with: (1) Conspiracy to Distribute and Possess with Intent to Distribute 100 grams of Heroin, in violation of 21 U.S.C. § 846; (2) being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g); and (3) Conspiracy to Obstruct Justice, in violation of 18 U.S.C. § 1512(k). ECF Nos. 39, 45. The Court sentenced Mr. Bruce to a period of 84 months incarceration on each count, to run concurrently.

         Petitioner's base offense level for Count Two was determined pursuant to U.S.S.G. § 2K2.1(a)(3), which sets the base offense level for a defendant who “committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(3). In Petitioner's case, the prior felony conviction was a 2005 conviction for Maryland Possession with Intent to Distribute Narcotics. ECF No. 45 at 5; PSR at ¶ 41.[2]

         Petitioner did not appeal his sentence. On June 13, 2016, Petitioner filed a timely motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence. ECF No. 67. In that motion, Petitioner claimed, inter alia, that he is entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and that he had ineffective assistance of counsel. On September 26, 2016, Petitioner filed a 28-page supplemental memorandum of law in which he expanded upon these claims and withdrew other claims for relief. ECF No. 69-1 at 4. The Government filed an Opposition, ECF No. 69, and Petitioner replied, ECF No. 70.

         II. DISCUSSION

         To be entitled to relief under 28 U.S.C. § 2255, a petitioner must prove by a preponderance of the evidence 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). Where, however, a § 2255 petition, along with the files and records of the case, conclusively shows the petitioner is not entitled to relief, a hearing on the motion is unnecessary and the claims raised therein may be dismissed summarily. 28 U.S.C. § 2255(b).

         A. Relief pursuant to Johnson

         Petitioner asserts that he is entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court found the “residual clause” of the Armed Career Criminal Act unconstitutionally vague. Id. at 2558. The residual clause defined a “crime of violence” as including “any crime punishable by imprisonment for a term exceeding one year [...] that . . . involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

         However, Johnson has no impact on Petitioner's sentence because Petitioner's base offense level was not predicated on a “crime of violence” as defined by the residual clause but instead on a prior “controlled substance offense.” U.S.S.G. § 2K2.1(a)(3). The base level offense for a defendant who “committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense” is calculated pursuant to U.S.S.G. § 2K2.1(a)(3) (emphasis added).

         Petitioner had a prior felony conviction for Maryland Possession with Intent to Distribute Narcotics, Md. Crim. Law § 5-602. PSR at ¶ 41. Petitioner's Maryland conviction qualifies as a predicate offense and that conviction remains a qualifying predicate offense under U.S.S.G. § 4B1.2(b) in the wake of Johnson. That is because the elements necessary to prove a violation of Md. Crim. Law § 5-602 are the same as the elements making up the guideline definition of a “controlled substance offense.” Compare Md. Crim. Law § 5-602 with U.S.S.G. § 4B1.2(b); see also Warner v. United States, 2017 WL 2377707, at *4 (N.D. W.Va. June 1, 2017). Petitioner's argument that Md. Crim. Law § 5-602 criminalizes broader conduct than the guideline definition, meaning that his Maryland conviction was not categorically a predicate offense, ECF No. 69-1 at 17, fails. To support this position, Petitioner points only to irrelevant language in § 5-603. Id. That provision does not provide different elements to satisfy the crime that Petitioner was convicted of in 2005, but instead describes an entirely separate criminal violation that is not relevant to the Court's analysis.

         Ultimately, because Petitioner's base offense level was not predicated on a “crime of violence, ” Johnson has no impact on Petitioner's sentence.

         B. Ineffective ...


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