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Bryant v. United States

United States District Court, E.D. Tennessee

April 10, 2017

DOUGLAS C. BRYANT, Petitioner,

          Christopher H. Steger Magistrate Judge



         Before the Court is Petitioner's supplemented pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docs. 40, 49.)[1] He bases the request for relief at least in part on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague. (Id.) The United States responded in opposition to the original petition on August 4, 2014 (Doc. 42), and the supplemented petition on August 19, 2016 (Doc. 51). Petitioner replied to both responses in turn. (Docs. 43, 52.) For the reasons that follow, Petitioner's supplemented pro se § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Beginning in December of 2009, law enforcement officers began a series of controlled drug buys from Freddy Marin, culminating with an informant's purchase of six pounds of marijuana from Marin on February 11, 2010. (Presentence Investigation Report (PSR) ¶¶ 5-6.)

         Officers converged on the scene to arrest Marin, and, as they did so, Petitioner got out of the front passenger seat of Marin's vehicle and tried to flee. (Id. ¶ 6.) They apprehended Petitioner and found 26.6 grams of cocaine and $600 cash in his possession. (Id.) Because Petitioner was on supervised release for prior federal convictions, and because this incident of drug possession was one in a series of repeated violations of the terms of his supervised release, the probation officer moved to revoke his supervised release. (E.D. Tenn. Case No. 1:01-cr-48.)

         A federal grand jury charged Petitioner with possessing with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). (Doc. 1.) The United States filed notice, pursuant to 21 U.S.C. § 851, of its intent to enhance Petitioner's sentence based on his prior federal drug conviction-the same one for which he was on supervised release. (Doc. 20.) On July 14, 2010, Petitioner pled guilty as charged, pursuant to a plea agreement with the United States. (Docs. 21, 23, 24, 25.) As part of that agreement, Petitioner stated that he would not contest the revocation of his supervised release. (E.D. Tenn. Case No. 1:01-cr-48, Doc. 59.)

         In calculating the applicable Guidelines range for Petitioner's new offense, the probation officer noted that a drug quantity of 26.6 grams of cocaine would ordinarily yield a base offense level of 14. (PSR at ¶ 12.) Based on two prior felony convictions-a 1996 robbery conviction and 2011 drug conviction-the probation officer deemed Petitioner to be a career offender as defined in Section 4B1.1 of the United States Sentencing Guidelines, with an enhanced offense level of 34. (Id. at ¶¶ 20, 30, 33.) After a three-level reduction for acceptance of responsibility, Petitioner's total offense level was 31. (Id. at ¶¶ 21-22.) Petitioner had ten criminal history points, for a criminal history category of V, which increased to VI because of his career-offender classification. (Id. at ¶ 38.) The resulting Guidelines range was 188 to 235 months' imprisonment. (Id. at ¶¶ 64.)

         Petitioner objected to his classification as a career offender, arguing that the 1996 robbery conviction was too remote to be considered a predicate offense, and the Court had the “ability and duty to depart” from the career-offender Guidelines range, because, in his view, a sentence within that range would be excessive and unjustified. (Doc. 29, at 1, 3.) During the sentencing hearing, Petitioner renewed his objection, reiterating that the Court had discretion to impose whatever sentence it deemed appropriate. (Doc. 34, at 3-4.) The United States agreed that the Guidelines range was advisory, but emphasized that the PSR correctly classified Petitioner as a career offender and calculated his Guidelines range accordingly. (Id. at 5-6.)

         The Court noted that, even if Petitioner was technically a career offender as defined by the Guidelines, he could be sentenced outside that Guidelines range if, in the Court's view, he was “really not the type of person that Congress [or the Sentencing Commission] had in mind.” (Id. at 7-8.) The Court went on to discuss Petitioner's criminal history:

[A]t age 18 he had a conviction for burglary of an automobile, at age 19 he had a conviction for marijuana possession and exchange; at age 21, a conviction for, looks like, possession of cocaine; at age 24, attempted forgery; at age 22, carrying a dangerous weapon; at age 23, robbery; at age 26, unlawful possession of a weapon; at age 27, resisting arrest; at age 28, possession with intent to distribute crack cocaine and possession of a weapon in furtherance of a drug-trafficking offense and felon in possession of a firearm. For [that] conviction he received a sentence of 100 months' imprisonment . . . in federal court.

(Id. at 9.) The Court found that Petitioner's criminal activity had been “consistent and constant, ” and “about the time that is significant in his life since he's turned 18 where he's not been either arrested or convicted of a crime has been when he's been in jail.” (Id. at 10.) The Court then concluded that Petitioner had two qualifying predicate convictions and was “exactly the type of person that Congress . . . and the Sentencing Commission had in mind for career-offender status, ” such that sentencing him within the career-offender Guidelines range would not result in a “disparate . . . or excessive sentence.” (Id. at 10-11.) The Court concluded that the PSR correctly calculated the advisory Guidelines range. (Id. at 11.)

         Petitioner, through counsel, argued that he had experienced difficulty “readjusting to the community” on supervised release, in part because of his drug addiction, and he asked the Court to impose “the minimum sentence” possible. (Id. at 14-16.) The Court asked defense counsel to address “what appears to be a predilection on [Petitioner's] part to assault and beat women, ”[2] and counsel stated that, although Petitioner had twice been charged with domestic assault, the incidents did not reveal any “tremendous amount of rage or violence, ” but merely a lack of appropriate “social skills.” (Id. at 16-17.) When invited to personally address the Court, Petitioner apologized to his girlfriend and his family, said he was not the same person he had been, and asked the Court “to have mercy.” (Id. at 18-20.) Although arguing that Petitioner's criminal record required a lengthy sentence, the United States acknowledged that Petitioner had twice met with law enforcement agents in an attempt to cooperate. (Id. at 20-21.)

         Petitioner affirmed the fact of his prior federal conviction, as referenced in the § 851 notice. (Id. at 22.) The Court credited Petitioner's allocution, noting that it demonstrated his intelligence and that his willingness to apologize revealed “something good.” (Id. at 23.) But the Court also referenced Petitioner's “long and lengthy and serious criminal history, ” which showed that he was a “persistent criminal” who was ...

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