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Pelletier v. United States

United States District Court, D. Maine

November 14, 2017

KENNETH PELLETIER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Kenneth Pelletier moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 57.) In 2013, following a guilty plea, Petitioner was convicted of conspiracy to distribute and possess with intent to distribute cocaine and 280 grams or more of cocaine base; the Court sentenced Petitioner to 222 months in prison. (Judgment, ECF No. 49 at 1-2.) Petitioner did not appeal from the judgment or the conviction. Petitioner claims he is entitled to relief under Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), for his career offender sentence.

         Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         At sentencing, the Court found the facts as set forth in the revised presentence investigation report. (Sentencing Tr., ECF No. 53 at 31.) Consistent with the report, the Court concluded that the following three prior Maine state court convictions qualified as predicates under USSG § 4B1.1(a) for purposes of a career offender enhancement: a 1997 burglary offense (1998 conviction); a 2003 drug trafficking offense; and a 2004 drug trafficking offense.[1] (Sentencing Tr., ECF No. 53 at 9, 31.)

         The Court calculated Petitioner's offense level as follows: the base offense level was 34, based on a drug quantity of 6, 477.8 kilograms of marijuana equivalent, pursuant to USSG § 2D1.1(c)(3); the offense level increased to 37, pursuant to USSG § 4B1.1(b)(1), because the statutory maximum term of imprisonment for the offense of conviction was life; the offense level was reduced by three levels, to 34, pursuant to USSG § 3E1.1(a), as credit for Petitioner's acceptance of responsibility. (Id. at 31.) The Court found the criminal history was Category VI. (Id.) The Court determined the advisory sentencing guidelines range was from 262 to 327 months. (Id.)

         The Court considered the sentencing factors set forth in 18 U.S.C. § 3553(a), particularly “the circumstances of the offense, the history of the defendant, need for just punishment, and the need for deterrence, ” and the Court imposed a term of imprisonment of 222 months, to be followed by ten years of supervised release. (Id. at 34.) The sentence reflected a downward departure that the Court had granted on the Government's motion. (Id. at 5-6.)

         Petitioner states that he placed his section 2255 motion in the prison mailing system on May 18, 2016; it was filed on May 23, 2016. (Motion at 1, 12.)

         II. Discussion

         Petitioner contends that he is entitled to habeas relief because he was sentenced under the guidelines “residual” clause, USSG § 4B1.2(a)(2), which corresponds to the Armed Career Criminal Act (ACCA) provision the Supreme Court held unconstitutionally vague in Johnson.[2]

         Petitioner's Johnson claim fails because in Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017), the Supreme Court held that Johnson did not apply to career offender sentences.

At the time of petitioner's sentencing, the advisory Sentencing Guidelines included a residual clause defining a ‘crime of violence' as an offense that ‘involves conduct that presents a serious potential risk of physical injury to another.' This Court held in [Johnson] that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines' residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner's argument.

Beckles, 137 S.Ct. at 890 (quoting USSG § 4B1.2(a)(2)).[3]

         The First Circuit held that Beckles “put the residual clause back in play” for career offender sentences under the advisory guidelines. United States v. Ball, 870 F.3d 1, 4 (1st Cir. 2017); see United States v. Booker, 543 U.S. 220, 245 (2005) (holding that the sentencing guidelines, excised of provisions the Court held unconstitutional, are “effectively advisory”). Beckles precludes Petitioner's J ...


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