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Dubose v. United States

United States District Court, W.D. Tennessee, Eastern Division

January 3, 2020

DERRICK DUBOSE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S MOTIONS, DENYING § 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         In September 2016, the Petitioner, Derrick Dubose, [1] filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). (Docket Entry (“D.E.”) 1.)[2] The inmate asserted three claims, one of which was premised on the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). On August 20, 2018, the Court denied the Johnson claim. (D.E. 7.) For the following reasons, the remaining claims are also DENIED.[3]

         BACKGROUND

         In April 2014, a federal grand jury returned a five-count indictment charging Dubose with marijuana trafficking (Counts 1 and 5), cocaine base trafficking (Counts 2 and 3), and MDMA[4]trafficking (Count 4). (No. 1:14-cr-10036-JDB-1, D.E. 2.) In March 2015, the Defendant pleaded guilty to Count 2 pursuant to an agreement with the Government. (Id., D.E. 37-39.) At sentencing, Dubose was determined to be a career offender under § 4B1.1 of the United States Sentencing Commission Guidelines Manual (“U.S.S.G.” or “Guidelines”) based on a Tennessee conviction for delivery of a controlled substance and a Tennessee conviction for the sale of a controlled substance. (Id., D.E. 49; Presentence Report ¶¶ 24, 38, 40.) His advisory Guidelines range was determined to be 151 to 188 months' incarceration. (No. 1:14-cr-10036-JDB-1, D.E. 49.) The Court imposed a below-Guidelines sentence of 120 months' imprisonment and three years of supervised release, with the sentence to run concurrently with four unexpired state sentences. (Id., D.E. 42.) Defendant took an unsuccessful direct appeal. (Id., D.E. 57.)

         DISCUSSION

         Petitioner asserts that the Court erred in applying the career offender enhancement at sentencing because the predicate state convictions are not controlled substance offenses (Claim 1). He also insists that counsel was ineffective in failing to make that argument (Claim 2).[5]Respondent, the United States of America, filed an answer to the Petition on August 29, 2018, arguing that Claim 1 is not cognizable and Claim 2 is without merit. (D.E. 9.) Petitioner filed a reply, in which he maintains that he is entitled to relief on both claims. (D.E. 12.)

         A prisoner seeking to vacate his sentence under § 2255 “must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). A § 2255 petitioner bears the burden of establishing entitlement to relief. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         In Claim 1, Dubose avers that he no longer qualifies as a career offender because an offense under the Tennessee drug statute, Tennessee Code Annotated § 39-17-417(a), is not categorically a controlled substance offense pursuant to the framework set forth in Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). Specifically, he maintains that “delivery” under the statute encompasses conduct, namely “offering to sell, ” that is broader than the Guidelines' definition of a controlled substance offense.[6]

         The Tennessee statute under which Petitioner was twice convicted provides that “[i]t is an offense for a defendant to knowingly . . . [m]anufacture a controlled substance[, ] [d]eliver a controlled substance[, ] [s]ell a controlled substance[, ] or . . . [p]ossess a controlled substance with intent to manufacture, deliver or sell the controlled substance.” Tenn. Code Ann. § 39-17-417(a). Under U.S.S.G. § 4B1.1, a defendant is a career offender if, among other things, he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled substance offense” is defined as

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).

         To determine if a conviction constitutes a controlled substance offense, a court must “apply a ‘categorical' approach, ” which focuses on the statute under which the petitioner was convicted, rather than the petitioner's conduct. United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). If the statute is “divisible, ” meaning it describes multiple offenses, the court may “employ the ‘modified categorical approach.'” United States v. House, 872 F.3d 748, 753 (6th Cir.) (quoting Descamps v. United States, 570 U.S. 254, 261-62 (2013)), cert. denied, 138 S.Ct. 367 (2017). That approach permits the examination of “a limited class of documents” from the defendant's prior criminal case in order “to determine which alternative formed the basis of the defendant's . . . conviction.” Id. (quoting Descamps, 570 U.S. at 257). The Supreme Court in Mathis clarified that a statute is divisible if it lists alternative elements, not alternative means of satisfying one or more elements. Mathis, 136 S.Ct. at 2249. If the statute lists alternative means, then it is “indivisible, ” and resort to the limited class of documents is prohibited. Id. at 2248.

         Under either approach, the “second step” in a court's analysis is to “determine whether the offense, as described either by the entirety of an indivisible statute or by the relevant alternative of a divisible statute, matches § 4B1.2(b)'s definition of a ‘controlled substance offense.'” United States v. Pittman, 736 Fed.Appx. 551, 554 (6th Cir.), cert denied, 139 S.Ct. 608 (2018). If the elements do not match, the prior conviction cannot be counted toward the defendant's career offender status. Mathis, 136 S.Ct. at 2247 (A “prior crime qualifies as a[] . . . predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.”)

         Dubose's claim that his prior Tennessee drug convictions are not controlled substance offenses under Mathis's framework is not cognizable in this § 2255 proceeding. In the Sixth Circuit's recent decision in Bullard v. United States, 937 F.3d 654 (6th Cir. 2019), the § 2255 petitioner challenged the district court's use of his “Arizona conviction for attempting to sell cocaine” to qualify him as a career offender. Bullard, 937 F.3d at 657. In support, he invoked the Sixth Circuit's en banc decision in Havis. Id. at 656. In Havis, the court held that “delivery” of a controlled substance under Tennessee Code Annotated § 39-17-417(a) is broader than the Guidelines' definition of a controlled substance offense because the state offense includes ...


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