United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING PETITIONER'S MOTIONS, DENYING
§ 2255 PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
September 2016, the Petitioner, Derrick Dubose,
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.”)
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
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
MDMAtrafficking (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.)
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).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.
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).
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
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).
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.
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
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 ...