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United States v. Boynton

United States District Court, D. Vermont

April 30, 2018



          Cnristina Reiss, District Judge United States District Court

         This matter came before the court for a review of the Magistrate Judge's July 26, 2017 Report and Recommendation ("R & R") (Doc. 65). On June 22, 2016, Defendant Edward Boynton, who is represented by Assistant Federal Public Defender David L. McColgin and Assistant Federal Public Defender Barclay T. Johnson, filed a petition pursuant to 28 U.S.C. § 2255 seeking a reduction of his 188 month term of imprisonment. (Doc. 33.) Defendant argues that his sentence was improperly enhanced pursuant to the residual clause of the United States Sentencing Guidelines (the "Guidelines") and violates his right to due process pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). Johnson held that the residual clause of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(1), was void for vagueness under the Due Process Clause. Welch made the Johnson rule retroactive to cases on collateral review. The government, represented by Assistant United States Attorney Gregory L. Waples, opposes Defendant's § 2255 petition.

         On July 25, 2016, the government requested that the Magistrate Judge stay its determination of Defendant's § 2255 until the Supreme Court issued its decision in Beckles v. United States, 137 S.Ct. 886 (2017), which the Magistrate Judge granted. On September 9, 2016, Defendant appealed the Order staying the case. (Doc. 44.) After Beckles was issued, the Magistrate Judge vacated the stay and ordered briefing on Defendant's petition.

         In the R & R, the Magistrate Judge recommended that the court deny and dismiss Defendant's § 2255 petition for two reasons. First, the Magistrate Judge determined that Defendant's § 2255 petition is untimely because the Supreme Court has not extended the Johnson holding to the residual clause in the career offender Guidelines, and Defendant does not contend that his petition is otherwise timely filed pursuant to § 2255(f). Second, because the Guidelines were advisory when Defendant was sentenced, the Magistrate Judge concluded that Beckles forecloses Defendant's void for vagueness challenge to the career offender enhancement. In such circumstances, the Magistrate Judge opined that a certificate of appealability was not warranted.

         In his objections to the R & R, Defendant asserts that he was "sentenced at a time when courts viewed the career offender Guidelines as mandatory and did not appreciate their ability to depart from the Guidelines for purely policy reasons." (Doc. 67 at 1) (emphasis in original). Defendant also objects to the conclusion that his claim is barred by Beckles and argues that Beckles confirms that ''Johnson renders the mandatory career offender Guidelines' residual clause void for vagueness." Id. at 9. Defendant relies on Teague v. Lane, 489 U.S. 288 (1989) in objecting to the R & R's conclusion that he seeks the recognition of a new substantive rule rather than the application of an existing rule. Finally, Defendant urges the court to reject the Magistrate Judge's recommendation that a certificate of appealability should not issue because "reasonable jurists have determined that [Defendant's] claim has merit." (Doc. 67 at 24.)

         I. Factual and Procedural Background.

         On February 8, 2005, approximately one month after the Supreme Court held that the Guidelines were advisory in United States v. Booker, 543 U.S. 220 (2005), this court sentenced Defendant to a term of 188 months imprisonment following his guilty plea to conspiracy to possess with intent to distribute and distribution in excess of five grams of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). The court noted that Defendant had at least two prior convictions that qualified as either "crimes of violence" or "controlled substance offenses" for purposes of the career offender enhancement.

         The presentence report ("PSR") recommended that the court find that Defendant was a career offender as defined in Guidelines § 4B1.1. In support of that recommendation, the PSR noted that Defendant was at least eighteen years of age at the time of the offense, that Defendant was charged with a felony controlled substance offense, and that Defendant had at least two prior felony convictions for crimes of violence or controlled substance offenses.[1]See PSR at 8, *\ 44. The PSR cited Defendant's prior Maryland convictions for assault and possession with intent to distribute cocaine as the prior felony convictions triggering the career offender enhancement.

         In determining Defendant's Guidelines range, the court adopted the PSR as its findings of fact. In making the Guidelines calculations, the court concluded that Defendant committed the offenses of conviction subsequent to sustaining "at least two prior felony convictions of a crime of violence or a controlled substance offense[, ]" specifically "an assault conviction in Baltimore, Maryland, [and] possession with intent to distribute cocaine in Baltimore[.]" (Doc. 48 at 5-6.) The court thus determined that the Guidelines should reflect a career offender enhancement. The court observed that it "obviously did consider the [G]uidelines [to be] advisory at this point and [it had] considered the factors in Section 3553." Id. at 9. After concluding that Defendant's offense level was thirty-one and that he had fourteen criminal history points, resulting in criminal history category VI, the court determined Defendant's Guidelines range was 188 to 235 months imprisonment. The court sentenced Defendant to a term of 188 months imprisonment followed by a four year term of supervised release. Defendant did not file a direct appeal.

         II. Conclusions of Law and Analysis.

         A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Arn, AlA U.S. 140, 150(1985).

         A. Defendant's Appeal of the Magistrate Judge's Order Staying the Case.

         On August 26, 2016, the Magistrate Judge granted the government's motion requesting a stay until the Supreme Court issued its decision in Beckles. Defendant filed an appeal of that Order and argues that, in the absence of expedited treatment of his motion, he will be deprived of meaningful relief because if he is resentenced without the career offender enhancement, the top of his revised Guidelines range would be less than the amount of time he has already served.

         In Blow V. United States,829 F.3d 170 (2d Cir. 2016), the ...

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