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Desouzaneto v. United States

United States District Court, E.D. Tennessee

January 24, 2017

MICHAEL DESOUZANETO Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court are Petitioner's motions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Desouzaneto I, Doc. 50; Desouzaneto II, Doc. 25].[1] The petition challenges the propriety of Petitioner's career offender enhancement in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015)-which held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), was unconstitutionally vague, and Sixth Circuit's decision in Pawlak v. United States-which cited Johnson's invalidation of the ACCA residual clause as the basis for invalidating Section 4B1.2(a)(2)'s parallel provision, 822 F.3d 902, 911 (6th Cir. 2016) [Id.]. The United States responded in opposition to relief on July 7, 2016 [Desouzaneto I, Doc. 52; Desouzaneto II, Doc.27]. Petitioner did not reply and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons discussed below, the motions will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Petitioner was charged with two counts of possessing firearms as a felon, both in violation of 18 U.S.C. § 922(g)(1), two counts of possessing a silencer not registered to him in the National Firearms Registration and Transfer Record, both in violation of 26 U.S.C. §§ 5861(d), 5845(a)(7), and 5871, and one count of conspiring to distribute anabolic steroids, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(E)(i) [Desouzaneto I, Doc. 7; Desouzaneto II, Doc. 1]; all five counts carried a penalty of up to ten years' incarceration. On August 20, 2014, Petitioner pled guilty, pursuant to Rule 11(c)(1)(C) plea agreement, to the drug offense and one of the two § 922(g) offenses [Desouzaneto I, Doc. 36; Desouzaneto II, Doc. 2]. In that same agreement, he stipulated to possessing at least three firearms and conspiring to distribute at least 40, 000 units of a Schedule III controlled substance [Id. ¶ 4(a)-(b), (k)-(m)], and agreed that a total term of 78 months' imprisonment with forfeiture and restitution of at least $60, 600 would be an appropriate sentence [Id. ¶¶ 4(1), 6]. In exchange for Petitioner's plea and concessions, the United States agreed to dismiss the remaining § 922(g) and § 5861(d) offenses [Id. ¶ 3].

         Because Petitioner's offense involved a “firearm . . . described in 26 U.S.C. § 5845(a)” and Petitioner had at least two prior convictions for crimes of violence-a 1998 Texas conviction for engaging in organized criminal activity (burglary) and a 2005 Tennessee conviction for aggravated assault, the United States Probation Office assigned Petitioner an enhanced base offense level under Section 2K2.1 of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶¶ 29, 55, 56].[2] After a two-level enhancement based on the number of firearms stipulated when pleading guilty, Petitioner's adjusted offense level for the § 922(g) offense was twenty-eight [Id. ¶ 30]. He received a base offense level of eighteen for the drug offense based on the quantity of drugs possessed, which was enhanced to twenty-two as a result of the fact that the offense involved distribution of a controlled substance “through mass-marketing by means of an interactive computer service” and Petitioner maintained premises for the purposes of distributing a controlled substance [Id. ¶¶ 35-37, 41]. Petitioner received a combined offense level of twenty-nine under the multi-count grouping provision [Id. ¶¶ 42-45], resulting in a total offense level of twenty-six after a three-level reduction for acceptance of responsibility [Id. ¶¶ 47-49].

         The United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 [Id. ¶ 46]. While the enhancement had no impact on Petitioner's total offense level, it did increase his criminal history category of III to a criminal history category of VI [Id. ¶¶ 58-59]. As a result, Petitioner received an advisory Guideline range of 120 to 150 months [Id. ¶¶ 76, 77]. Despite the fact that it amounted to a significant departure from the advisory range, this Court chose to accept the Rule 11(c)(1)(C) plea agreement and sentenced Petitioner to the agreed upon 78-month term on May 5, 2015 [Desouzaneto I, Doc. 45; Desouzaneto II, Doc. 20].

         No direct appeal was taken and Petitioner's conviction became final for purposes of § 2255(f)(1) on May 19, 2015, at expiration of time to file an appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the fourteen-day period for filing a direct appeal has elapsed). Slightly over one year later, this Court received the instant petitions based on the Johnson decision.

         II. TIMELINESS OF PETITIONS

         Section 2255(f) places a one-year statute of limitations on all petitions for collateral relief under § 2255 running from either: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). Supreme Court precedent makes clear that Johnson's invalidation of the ACCA residual clause amounted to a new rule made retroactively applicable on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (U.S. 2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). It is yet to be seen whether the same is true of the “new rule” that results from application of Johnson's reasoning in the Guideline context. See Pawlak v. United States, 822 F.3d 902, 911 (6th Cir. 2016) (holding that Johnson's vagueness analysis applies equally to the Guidelines and, as a result, that the parallel residual provision contained in Section 4B1.2 was void for vagueness); but see In re Embry, No. 16-5447, 2016 WL 4056056, at *1 (6th Cir. July 29, 2016) (recognizing that “it is not clear whether to treat Pawlak as a new rule that the Supreme Court has not yet made retroactive [to cases on collateral review] or as a rule dictated by Johnson that the Supreme Court has made retroactive”). The Court finds that it need not resolve the issue here, however, because Petitioner has failed to establish that application of the decision to his case would impact his sentence.

         1. STANDARD OF REVIEW AND ANALYSIS

         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         III. ANALYSIS

         Petitioner asserts a single ground for relief, arguing that the Johnson decision removed his Texas conviction for engaging in organized criminal activity and Tennessee conviction for aggravated assault from Section 4B1.2(a)'s definition of “crime of violence” and that, without those convictions his base offense level and criminal history category were improperly enhanced [Desouzaneto I, Doc. 50; Desouzaneto II, Doc. 25].[3] The United States opposes the requested relief for two reasons: (1) the new “rule” created by extension of the Johnson decision to the Guideline context has not been “made” retroactively applicable to cases on collateral review; and (2) Petitioner's sentence was based on his Rule 11(c)(1)(C) plea agreement, not the challenged career offender enhancement [Desouzaneto I, Doc. 52; Desouzaneto II, Doc. 27].

         This Court agrees that Petitioner's sentence was based on his Rule 11(c)(1)(C) plea agreement and that Petitioner has failed to establish that application of the Johnson decision to his case would have impacted the sentence imposed, it declines to reach the alternative ...


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