United States District Court, D. Maryland
Deborah K. Chasanow United States District Judge.
pending and ready for resolution is the 28 U.S.C. § 2255
motion to vacate, set aside, or correct filed by Petitioner
Jamar Holt. (ECF No. 176). Also pending are: a motion to
reduce sentence, (ECF No. 173), a motion for leave to file
supplement, (ECF No. 194), and a motion for expedited review
(ECF No. 225). For the following reasons, the motions to
vacate and to reduce sentence will be denied, and the motion
to expedite will be denied as moot.
Holt pleaded guilty on February 4, 2014, to two counts of the
third superseding indictment: (1) conspiracy to distribute
and possess with intent to distribute five kilograms or more
of cocaine and one kilogram or more of heroin, and (2) money
laundering. The guilty plea was entered pursuant to a written
agreement under Fed.R.Crim.P. 11(c)(1)(C). The parties agreed
to a 240-month sentence. In his attempts to obtain a sentence
reduction, Mr. Holt argues that he was improperly classified
as a career offender and, absent that designation, his
sentencing guideline range has been lowered by an amendment
so that he is eligible for a reduction. Despite the changing
landscape of sentencing jurisprudence in the last several
years, Mr. Holt's quest is unsuccessful.
Presentence Report calculated that, pursuant to U.S.S.G.
§ 4B1.1, the total combined offense level was 34, with a
criminal history category of VI. Mr. Holt was found to be a
career offender because he had two prior felony convictions
for controlled substance offenses. The guideline range was 262
to 327 months. The court imposed the agreed-upon variance
sentence due to the binding plea, noting the specific
motivations of each side. Petitioner did not appeal.
27, 2016, Petitioner filed his § 2255 motion and raised
two grounds for challenging his career offender designation:
violation of due process and prior conviction older than
fifteen years. The first argument asserts that his
“career offender” sentence was imposed in
violation of due process. He cites to Johnson v. United
States, 135 S.Ct. 2551 (2015), to argue that the
residual clause is unconstitutionally vague. The second
argument asserts that one of the predicate felony convictions
was more than 15 years old, and therefore should not have
been scored against him under the career offender provisions.
21, 2017, Petitioner, now represented by counsel, filed a
motion for leave to supplement the § 2255 motion, to
include reliance on Mathis v. United States, 136
S.Ct. 2243 (2016) and sought a period of time in which to do
so. (ECF No. 194). The government opposed the motion, (ECF
No. 195), and counsel replied (ECF No. 196).
Holt had also filed a motion for modification of sentence
pursuant to 18 U.S.C. § 3582(c)(2), (ECF No. 173), and a
supplement (ECF No. 186). The government responded. (ECF No.
189). Mr. Holt replied, (ECF No. 192), and also filed a
supplement (ECF No. 218).
Motion to Vacate Pursuant to 28 U.S.C. § 2255
2255 requires a petitioner asserting constitutional error to
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.”
“[T]he scope of review of non- constitutional error is
more limited than that of constitutional error; a
non[-]constitutional error does not provide a basis for
collateral attack unless it involves ‘a fundamental
defect which inherently results in a complete miscarriage of
justice,' or is ‘inconsistent with the rudimentary
demands of fair procedure.'” United States v.
Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)
(internal citations omitted).
pro se movant is entitled to have his arguments
reviewed with appropriate consideration, see Gordon v.
Leeke, 574 F.2d 1147, 1151-53 (4th Cir.
1978), cert. denied, 439 U.S. 970 (1978), if the
§ 2255 motion, along with the files and records of the
case, conclusively shows that he is entitled to no relief, a
hearing on the motion is unnecessary and the claims raised in
the motion may be dismissed summarily. 28 U.S.C. § 2255.
Government contends that neither the initial petition nor the
supplement is timely filed, but that position relies on
rejecting the merits of the Petitioner's arguments. In
essence, the petition and the supplement fail because neither
Johnson nor Mathis provide an avenue for
relief in a § 2255 proceeding.
improper application of the career offender guideline is not
a fundamental defect cognizable in a § 2255 proceeding.
United States v. Foote, 784 F.3d 931, 940 (4th Cir.
2015). Moreover, the void for vagueness doctrine does not
apply to the sentencing guidelines. Beckles v. United
States, 137 S.Ct. 886, 892 (2017). It is not entirely
clear what Mr. Holt is arguing with reference to the 15-year
limitation. The applicable time period in the guidelines for
a prior conviction is one that was “imposed within
fifteen years of the defendant's commencement of the
instant offense, ” or “that resulted in the
defendant being incarcerated during any part of such
fifteen-year period.” U.S.S.G. § 4A1.2(e). It does
not matter when the prior offense was committed. His state
court conviction for conspiracy to distribute heroin and
cocaine resulted in imprisonment until November 29, 2000. The
offense of conviction in this case involved conduct beginning
in October 2012, less than 15 years later. Thus, regardless
of when Mr. Holt was sentenced, or resentenced, the
conviction would be scored.
supplement to the petition argues that § 5-602 of the
Maryland Code does not provide a qualifying conviction. Very
recently, in United States v. Johnson, 945 F.3d 174,
2019 WL 6884510, at *5-7 (4th Cir. Dec. 18, 2019), the United
States Court of Appeals for the Fourth Circuit held that a
Maryland conviction for possession of a controlled substance
with intent to distribute constitutes a “controlled
substance offense” under the Sentencing Guidelines. On
the other hand, it may be that conspiracy convictions without
an overt act requirement do not qualify. United States v.
Norman, 935 F.3d 232, 239 (4th Cir. 2019); United
States v. Whitley, 737 Fed.Appx. 147, 149 (4th Cir.
2018). Nevertheless, the issue continues to be an improper
application of the career-offender guidelines, an issue not
cognizable in a § 2255 proceeding. Foote, 784
F.3d at 940.
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 (4th Cir. 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. § 2253(c)(2).
Where the court denies a petitioner's motion on its
merits, a petitioner satisfies this standard by demonstrating
that reasonable jurists would find the court's assessment
of the claim debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484 ...