United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court for initial review of the Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
Motion"), ECF No. 39, filed by Corey J. Ojeda
(“Defendant”). For the reasons stated below, the
§ 2255 Motion will be summarily dismissed.
February 25, 2002, Defendant pled guilty to the offenses of
possession with intent to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)
(“Count I”), and possession of a firearm during a
drug trafficking crime in violation of 18 U.S.C. §
924(c) (“Count II”). Defendant received a
sentence of 151 months incarceration on Count I and 60 months
incarceration on Count II, to be served consecutively,
followed by three years of supervised release on each count,
to be served concurrently. Defendant did not appeal the
conviction or sentence. ECF No. 32.
review of the Presentence Investigation Report
(“PSR”), ECF No. 31, reveals that Defendant was
sentenced as a career offender under the federal Sentencing
Guidelines. United States Sentencing Commission, Guidelines
Manual § 4B1.1 (Nov. 2000) (U.S.S.G.). Section 4B1.1(a)
of the Guidelines confers career offender status where the
defendant is being sentenced for a felony that is either a
crime of violence or a controlled substance offense and the
defendant also has two prior felony convictions of crimes of
violence or controlled substance offenses. Id. At
the time of Defendant's sentencing, § 4B1.2 defined
the term “crime of violence” to include
“any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . .
otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2) (2011) (emphasis added). The
italicized language is known as the residual clause.
Beckles v. United States, U.S., 137 S.Ct. 886, 890
(2017). Defendant was given career offender status due to his
prior crimes of violence, i.e., burglary and
first-degree assault. Defendant contends that his burglary
conviction fell within the scope of the residual clause of
§ 4B1.2 of the Guidelines. U.S.S.G. § 4B1.2(a)(2).
Johnson v. United States, the Supreme Court held the
residual clause of the Armed Career Criminal Act of 1984
(the “ACCA”), 18 U.S.C. §924(e)(1), which is
identical to the residual clause in Guidelines §
4B1.2(a)(2), to be unconstitutionally vague, and therefore
void pursuant to the Due Process Clause of the Fifth
Amendment. 576 U.S., 135 S.Ct. 2551 (2015). In Welch v.
United States, the Supreme Court held “that
Johnson is retroactive in cases on collateral
review[.]” 578 U.S., 136 S.Ct. 1257 (2016). Citing
Johnson, the Defendant argues that the identically
worded residual clause of Guidelines § 4B1.2(a)(2) is
unconstitutionally vague and that his sentence should be
vacated and corrected.
Supreme Court recently held that the advisory Sentencing
Guidelines, including the residual clause of § 4B1.2(a),
are not subject to vagueness challenges under the Due Process
Clause. Beckles v. United States, U.S., 137 S.Ct.
886 (2017). Defendant contends that because the Supreme Court
limited its holding in Beckles to the advisory
Sentencing Guidelines, and because he was sentenced in 2004
when the Guidelines were mandatory,  Beckles does not
bar his due process vagueness challenge to the mandatory
Sentencing Guidelines. Accordingly, he asks the Court to
vacate and modify his sentence in light of Johnson.
2255(b) requires a court to serve notice of the § 2255
motion upon the United States attorney, grant a prompt
hearing, and make a determination on the motion
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief[.]” 28 U.S.C. § 2255(b).
Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts requires
initial review of a defendant's § 2255 motion. Rule
judge who receives the motion must promptly examine it. If it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
the reviewing court may summarily dismiss the § 2255
motion if it plainly appears the movant is not entitled to
The Supreme Court's holding in Beckles Does Not Bar