United States District Court, D. Maryland, Southern Division
J. Hazel, United States District Judge.
before the Court is Petitioner Steven Bruce's Motion to
Vacate, Set Aside, or Correct a Sentence. ECF No.
No. hearing is necessary. See 28 U.S.C. §
2255(b). For the following reasons, Petitioner's Motion
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.
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.
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.
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).
Relief pursuant to Johnson
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).
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).
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.
because Petitioner's base offense level was not
predicated on a “crime of violence, ”
Johnson has no impact on Petitioner's sentence.