UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. )
) Criminal Action No. 10-251 (RBW)
DARREN UPSHUR, )
)
Defendant. )
g
MEMORANDUM OPINION
The defendant, Darren Upshur, is currently sewing a 188-month term of imprisonment
that was imposed by this Court following his plea of guilty to one count of unlawful distribution
of fifty grams or more of cocaine base, also known as crack, in violation of 21 U.S.C.
§ 84l(a)(l) and (b)(l)(B)(ii) (2006). S;oe Plea Agreement at l (Nov. 9, 2011); Judgment in a
Criminal Case (“Judgment”) at 2 (Feb. 15, 2012). Currently pending before the Court are the
defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Def.’s
Mot.”) and his Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255 (“Def.’s Supp.
Mot.”), which “move[] this Court to vacate his sentence and enter an amended judgment
sentencing him to time-served, in light of the Supreme Court’s decision in Johnson v. United
M, _U.S. _, 135 S. Ct. 2551 (2015).” Def.’s Supp. Mot. at l. Upon consideration of the
parties’ submissions,1 the Court concludes that it must deny the defendant’s motion for the
reasons explained below.
' In addition to the filings already idcnliHed, the Court considered the following submissions in rendering its
decision: (1) the United Slates’ Opposition lo Del`endant’s Motion to Vacale Judgment Under 28 U.S.C. § 2255 and
Supplemental Motion to Vamte Judgment (“Gov’t’s Opp’n"); and (2) the defendant's Reply Mcmorandum in
Support of Motion and Supplemental Motion to Vaeate Judgment Under 28 U.S.C. § 2255 (“Def.’s Reply”).
I. BACKGROUND
Afier the defendant entered his guilty plea, the United States Probation Office (the
“Probation Office”) submitted to the Court its final Presentence Investigation Report (the
“Report” or “PSR”), which included a sentencing guidelines calculation pursuant to the United
States Sentencing Guidelines (the “Sentencing Guidelines” or “USSG”). g PSR at l (Jan. 18,
2012). The Report reflected a total criminal history score of six points based on two prior felony
convictions: (l) a 1999 distribution of heroin conviction adjudicated in the Superior Court of the
District of Columbia` (“Superior Court”), W g 1| 36, and (2) a 2000 attempted robbery
conviction also adjudicated in Superior Court, se_e § 1| 37.2 Based on these convictions, the
Probation Office determined that the defendant qualified as a career offender pursuant to
§ 4B.1 . l(a) of the Sentencing Guidelines. §eg g 1[ 24.3 Thus, although the Probation Off'rce
recognized that “a criminal history score of six [would generally have] establish[ed] a criminal
history category of III,” id_. 1] 39, because “[t] he defendant [wa]s a career offender[,] [ ] the
criminal history category [wa]s VI,” ii 11 40. Accordingly, “[b]ased upon a total offense level of
2 The Report identified four additional prior felony convictions; however, the Probation Oifice did not score these
convictions because the sentences resulting from them were not eligible for scoring under the Sentencing
Guidelines. E PSR 1]1| 29, 31-32, 34. Under § 4Al.2(e), a prior sentence may not be counted unless it “was
imposed within ten years of the defendant’s commencement of the instant off`ense,” “exceed[cd] one year and one
month [and] was imposed within fifteen years of the defendant’s commencement of the instant off`ense,” or
“exceed[ed] one year and one month[] . . . [and] resulted in the defendant being incarcerated during any part of such
fifteen-year period.” USSG § 4Al.2(e) (2011). Here, three of the unscored sentences were imposed over fifteen
years before the criminal conduct charged in this case occurred and did not result in the defendant being incarcerated
during that fifteen-year period, and, the fourth unscored sentence was imposed more than ten years before the
criminal conduct charged in this case occurred and did not result in a prison sentence B PSR 11 3 (ref]ecting that
“[t]he criminal conduct charged in the Indictment [in this case] occun'ed on July 29, 2010”); g W 29, 31-32
(reflecting one prior sentence imposed in 1987 for 180 days, and two prior sentences imposed in 1989 for four
years); g ‘\l 34 (reflecting a fourth prior sentence imposed in 1999 that did not result in imprisonment).
3 Although the Probation OHice did not explicitly identify which of the defendant’s prior felony convictions formed
the basis for its career offender detennination, g PSR 11 24, it only added criminal history points for the
defendant’s 1999 distribution of heroin conviction and 2000 attempted robbery conviction, g g 1111 36-37. Thus,
as the government correctly notes, see Gov’t’s Opp’n at 3, and the defendant does not disputc, sec generally Def.‘s
Supp. Mot.; Def.’s Reply, these two convictions were the only convictions on which the Probation Oliice could have
based its career offender detennination, 53 USSG § 4B l .2(c)(2) (2011) (instructing that “the sentences for at least
two of the [ ] felony convictions [must be] counted separately under the provisions of § 4A1. l(a), (b), or (c)”); id
§ 4A1.1(a)-(c) (referring only to sentences that receive criminal history points).
31 and a criminal history category of VI,” the Report calculated “the [applicable] guideline
imprisonment range [a]s 188 months to 235 months.” l_d_. 1| 100.
The Court sentenced the defendant on February 1, 2012. g Judgment at l. At the
sentencing hearing, the Court “accept[ed] the [Probation Offrce’s final Report] and [its]
Guidelines [calculations] as accurate” without any objection by defense counsel, Def.’s Supp. '
Mot., Exhibit (“Ex.”) A (Transcript of Sentencing Before the Honorable Reggie B. Walton (Feb.
l, 2012) (“Sentencing Tr.”)) 3:8-10, 17-18, and, upon “consider[ing] all the various factors in
deciding [ ] the appropriate sentence [ ], including the Guideline sentence,” it concluded that a
sentence at “the bottom end of the Guidelines” was appropriate, ida Ex. A (Sentencing Tr.) 7:17-
2l. Accordingly, the Court sentenced the defendant to a 188-month term of imprisonment Sie
Judgment at 2.
Subsequently, on June 26, 2015, the Supreme Court issued its decision in Johnson. w
_ U.S. at __, 135 S. Ct. at 2551. On June 21, 2016, the defendant filed an abridged motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 (2012), see generally Def.’s Mot., in
accordance with the Standing Order issued by the Chief Judge of this Court, ge Standing Order
at 2 (June 2, 2016) (authorizing prisoners seeking post-conviction relief based on Johnson “to
file an abridged motion[] pursuant to 28 U.S.C. § 2255[] . . . by June 26, 2016”). The
defendant’s motion, as supplemented on October 31, 2017, B Def`.’s Supp. Mot. at l, is the
subject of this Memorandum Opinion.
II. STANDARD`OF REVIEW
The Antiterrorism and EH`ective Death Penalty Act (the “AEDPA”) permits a federal
prisoner in custody pursuant to a sentence imposed by a federal court to “move the court which
imposed the sentence to vacate, set aside[,] or correct the sentence” “upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
However, it “limits the time in which a prisoner may bring such a motion,” United States v.
gm 214 F.3d 199, 200 (D.C. Cir. 2000), providing that
[a] [one]-year period of limitation shall apply to [any such] motion . . . [, and t]he
limitation period shall run from the latest of_
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence
28 U.s.c. § 2255(0.
m. ANALYSIS
Under the version of the Sentencing Guidelines in effect when the defendant was
sentenced,
[a] defendant [wa]s a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
USSG § 4Bl.l(a) (2011). The Sentencing Guidelines fitrther defined a “crime ofviolence” as
any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that -
(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury
to another,
Ld. § 4B1.2(a). The clause “or otherwise involves conduct that presents a serious potential risk
of physical injury to another” is known as the “residual clause.” l_BMs\/.Unit__e_d_m, _
U.S. _, _, 137 S. Ct. 886, 891 (2017).
The defendant contends that his “prior [ ] attempted robbery conviction could only
qualify as a crime of violence under the residual clause” of § 4B1.2(a) of the Sentencing
Guidelines, Def.’s Supp. Mot. at 3, and, thus, “his sentence was unconstitutionally, unlawfully,
and unjustly increased based on an advisory [Sentencing] Guidelines provision that, as the
Supreme Court recognized for the first time in Johnson, was so meaningless that this Court could
not objectively, fairly, and reliably apply it,” id at 12. The government argues in response that
the Court should deny the defendant’s motion for several reasons, including that “his motion is
untimely under 28 U.S.C. § 2255(f),” he “has procedurally defaulted the challenge he now seeks
to raise,” and “his claim is not cognizable under § 2255.” Gov’t’s Opp’n at 7. The Court first
addresses the defendant’s timeliness argument, as that issue is potentially dispositive
A. Timeliness Under § 2255(f)
“In most cases, the operative date from which the limitation period is measured will be
the . . . date on which the judgment of conviction becomes final.” Dodd v. United States, 545
U.S. 353, 357 (2005) (intemal quotation marks and citation omitted). “Where, as here, ‘a federal
criminal defendant does not appeal to the court of appeals, the judgment becomes final upon the
expiration of the period in which the defendant could have appealed to the court of appeals. ”’
United States v. Ingi_'am, 908 F. Supp. 2d l, 4 (D.D.C. 2012) (Walton, J.) (quoting Sanchez-
Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004)). Here, because the defendant did
not notice an appeal fi'om the judgment imposed by this Court on Februaiy 1, 2012, §
` Judgment at 1, his judgment became final fourteen days thereafter, on February 15, 2012, g
Fed. R. App. P. 4(b)(l)(A) (2012) (“ln a criminal case, a defendant’s notice of appeal must be
filed in the district court within 14 days . 7 . of[] the entry of [ ] the judgment . . . being
appealed[.]”). Thus, because the defendant did not file the‘instant motion until over four years
later, g Def.’s Mot. at l, his motion is untimely under § 2255(f)(1), see 28 U.S.C. § 2255(f)(1).
Nonetheless, the defendant contends that his motion is timely pursuant to 28 U.S.C.
§ 2255(f)(3), which provides that a federal prisoner may file a § 2255 motion within one year of
“the date on which the right asserted was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.” Specifically, he argues that his “motion satisfies the statute of limitations
[under § 2255(f)(3)] because it was filed within one year fi'om the date on which the Supreme
Court[] in msgg[] newly and initially recognized the right he asserts-the right not to serve a
sentence increased because of the residual clause, which [ ] is retroactively applicable to cases on
collateral review.” Def`.’s Supp. Mot. at 40. The government responds that “§ 2255(0(3) does
not apply” because “Mr_i_§@ did not recognize the right that the defendant asserts,” Gov’t’s
Opp’n at 14, as it “recognized [only] a right not to be subject to a sentence imposed under the
[Armed Career Criminal Act’s (‘ACCA’)] residual clause” and “did not discuss the
[G]uidelines . . . [or] recognize any rights related to the [G]uidelines’ application,” id_. at ll. It
fiirther argues that the defendant’s position is foreclosed by the Supreme Court’s decision in
Beckle§ v. United States, which demonstrated that “Johnson [does not] appl[y] to claims under
the Guidelines” Ld.v at 10 n.3; see also g at 9 (citing Beckles, _ U.S. at _, 137 S. Ct. at 895).
The Court’s analysis must begin with the Supreme Court’s decision in Johnson. In that
decision, the Supreme Court considered a federal prisoner’s challenge to the enhancement of his
sentence pursuant to the ACCA, which imposes “more severe punishment [upon a defendant] if
he has three or more previous convictions for a ‘violent felony,’ a term defined [by the residual
clause of the ACCA] to include any felony that ‘involves conduct that presents a serious
potential risk of physical injury to another.”’ M, _ U.S. at _, 135 S. Ct. at 2555 (quoting
18 U.S.C. § 924(e)(2)(B) (2012)). Specifically, it considered whether the ACCA’s residual
clause violated “the [ ] prohibition of vague criminal laws” contained in the Due Process Clause
of the Fiiih Amendment of the United States Constitution, L, which prohibits the government
from “taking away someone’s life, liberty, or property under a criminal law so vague that it fails
to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites
arbitrary enforcement,” id at 2556. In answering that question in the affirmative, the Supreme
Court observed that “[t]wo features of the residual clause conspire[d] to make it
unconstitutionally vague”: first, it “leaves grave uncertainty about how to estimate the risk posed
by a crime,” it_ia at 2557, and second, it “leaves uncertainty about how much risk it takes for a
crime to qualify as a violent felony,” id at 2558. Based on these features, the Court concluded
that “the residual clause produce[d] more unpredictability and arbitrariness than the Due Process
Clause tolerates.” L