United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Barry Crawford's Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody under 28 U.S.C. § 2255, Filing No. 46 in case
8:11cr353 and Filing No. 29 in case 8:11cr383.
seeks relief under Johnson v. United States, 135
S.Ct. 2551, 2557 (2015) and Descamps v. United
States, 133 S.Ct. 2276, 2282
(2013). Crawford was sentenced as a career
offender under United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.2(a)(2). He contends that
his previous conviction for burglary no longer qualifies as a
crime of violence and his sentence is therefore a violation
of due process.
opposition, the government argues that Crawford is ineligible
for § 2255 relief because: (1) under Beckles v.
United States, 137 S.Ct. 886, 891-92 (2017), the Supreme
Court's holding in Johnson does not apply to USSG §
4B1.2's Career Offender Guideline; (2) Johnson does not
retroactively apply to the Guidelines; and (3) the motion is
not timely under § 2255(f)(3), because Beckles
confirms that the Supreme Court still has not recognized a
“new” due process right not to have one's
Guidelines range calculated under an allegedly vague
court held a hearing on the motion on Nov. 11, 2016. At the
time of the hearing, the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886, 891- 92
(2017), which was to address the issue of whether the Supreme
court's holding in Johnson extended to the corresponding
Guidelines career-criminal enhancement was pending. This
court accordingly held the § 2255 motion in abeyance
pending resolution of that case.
UNDERLYING CONVICTION AND SENTENCE
record shows that Crawford was indicted in a two-count
Indictment in case No. 8:11CR353 on October 18, 2011. He was
charged in Count I with knowingly and intentionally possess
with intent to distribute cocaine base, i.e., crack cocaine,
a Schedule II controlled substance, in violation of 21 U.S.C.
841(a)(1) and (b)(1), and in Count II with being a felon in
possession of a firearm on September 2, 2011. On November 4,
2011, he entered pleas of not guilty to the Indictment and
was detained. Shortly thereafter, Crawford was indicted on
another charge of being a felon in possession of a firearm,
this time for an offense that occurred on November 2, 2011 in
case No. 8:11cr383. On February 28, 2012, the defendant
entered pleas of guilty to the charges in both cases.
United States Probation Office (“Probation
Office”) determined that Crawford's base offense
level was 24 under the Guidelines career-offender provision,
U.S.S.G. § 2K2.1(a)(2). That provision applies if the
defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions for
either a crime of violence or a controlled substance offense.
U.S.S.G. § 2K2.1(a)(2). As predicate offenses, the
Probation Office relied on a 2003 federal drug trafficking
conviction and a 2003 Nebraska state court conviction for
Probation Office found Crawford's sentence was subject to
enhancements of two levels under § 2K2.1(b)(4)(A) for a
stolen firearm and four levels under § 2K2.1(b)(6)(B)
for use or possession of a firearm in connection with a
felony offense, resulting in an adjusted offense level of 30.
The defendant was entitled to a two-level reduction for
acceptance of responsibility resulting in a total offense
level of 28. However, because of his two prior convictions,
Crawford's base offense level became 32 under
4B1.1(b)(3). After a two level adjustment for acceptance of
responsibility, his base offense level was 30.
determined that Crawford's criminal history category was
VI, based on the assessment of 11 criminal history points as
follows: three points for a state court conviction for
burglary in 2003; three points for a state court conviction
for possession of a controlled substance in 2002; three
points for a federal conviction of possession with intent to
deliver crack cocaine in 2003; and two points for committing
the instant drug trafficking offense while on supervised
release for the federal conviction. His criminal history
category under the Guidelines career offender provision was
also VI. Based on a criminal history category of VI at
offense level 30, Crawford's Guidelines sentencing range
was 168-210 months. The maximum statutory sentence for the
felon-in- possession charges was 120 months, so 120 months
became Crawford's Guidelines sentence for those charges
under U.S.S.G. § 5G1.1(a).
count of conviction had a mandatory minimum sentence. A
career offender's offense level is determined in part by
referencing the statutory maximum penalty of the crime of
conviction. U.S.S.G. § 4B1.1(b). The drug distribution
conviction had a maximum sentence of 20 years under 21 U.S.C.
§ 841(b)(1)(C) and the felon in possession convictions
each had a maximum penalty of 10 years.
government adopted the findings in the PSR. Crawford moved
for a departure or a sentence outside the Guidelines, arguing
that a sentence of 85 months (roughly seven years) would be
appropriate. The court imposed a sentence outside the
Guidelines and sentenced the defendant to 144 months (roughly
12 years) imprisonment on the drug distribution count, and
120 months on each of the felon-in-possession counts, to ...