United States District Court, S.D. Mississippi, Southern Division
ALBERT CRAFT, JR. PETITIONER
UNITED STATES OF AMERICA RESPONDENT Civil No. 1:16-cv-233-LG
ORDER DENYING MOTION MADE PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING AS MOOT MOTION FOR VOLUNTARY
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  Motion to Vacate, Set Aside, or Correct
a Federal Sentence Pursuant to 28 U.S.C. § 2255 filed by
Defendant Albert Craft, Jr. Craft was sentenced to 63 months
and three years supervised release for being a felon in
possession of a firearm. In his § 2255 Motion, Craft
challenges the constitutionality of the United States
Sentencing Guideline § 4B1.2(a)(2) and further
argues that his previous Mississippi state court conviction
for robbery should not be considered a “crime of
violence” under § 4B1.2(a). Having reviewed the
applicable law, the Court finds that Craft's Motion
should be denied. Craft's Motion for Voluntary Dismissal
 will be denied as moot.
2255 provides four grounds for relief: (1) “that the
sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was
without jurisdiction to impose such sentence;” (3)
“that the sentence was in excess of the maximum
authorized by law;” and (4) that the sentence is
otherwise “subject to collateral attack.” 28
U.S.C. § 2225(a). Craft contends that: (1) the residual
clause in § 4B1.2(a)(2) is unconstitutionally vague; and
(2) his prior Mississippi state court conviction for robbery
is not a “crime of violence” under §
4B1.2(a) because (a) robbery does not meet the physical force
requirement of § 4B1.2(a)(1); and (b) robbery is not an
enumerated crime under § 4B1.2(a)(2) because it is
enumerated in the Commentary to § 4B1.2, but not the
body of § 4B1.2(a)(2). The Court discusses each
contention in turn below.
Johnson v. United States, 135 S.Ct. 2551 (2015), the
United States Supreme Court held that the residual clause of
the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B), was unconstitutionally vague because “the
indeterminacy of the wide-ranging inquiry required by the
residual clause both denies fair notice to defendants and
invites arbitrary enforcement by judges.” Id.
at 2557. The Johnson Court left open the question,
however, of whether the identically worded residual clause
contained in Sentencing Guideline § 4B1.2(a)(2) -
challenged here by Craft - was constitutional.
March 6, 2017, the Court answered that question in
Beckles v. United States, 137 S.Ct. 886 (2017).
Specifically the Court found that “[u]nlike the ACCA, .
. . the advisory guidelines do not fix the permissible range
of sentences.” Id. at 892. “To the
contrary, they merely guide the exercise of a court's
discretion in choosing an appropriate sentence within the
statutory range.” Id. “Accordingly, the
Guidelines are not subject to a vagueness challenge under the
Due Process Clause. The residual clause in § 4B1.2(a)(2)
therefore is not void for vagueness.” Id.
Thus, pursuant to Beckles, the Court finds that
Craft is not entitled to 2255 relief based on the challenge
that § 4B1.2(a)(2) is unconstitutionally vague. See,
e.g., United States v. Garza, No. 2:11-CR-117-1, 2017 WL
932933, at *2 (S.D. Tex. Mar. 8, 2017).
“Crime of Violence”
argument pertaining to the physical force requirement of
§ 4B1.2(a)(1) necessarily assumes that the residual
clause is unconstitutional, which Beckles holds it
is not. Because Craft has not challenged whether robbery
qualifies as a “crime of violence” under the
residual clause, the Court need not decide whether robbery
also qualifies under the physical force clause of §
4B1.2(a)(1). See, e.g., United States v. Rodriguez,
664 F.3d 1032, 1036 (6th Cir. 2011) (explaining that a prior
felony can be considered a “crime of violence” if
it is one of the enumerated offenses in the Commentary; meets
the elements of the “physical force” clause; or
qualifies under the “residual clause”);
United States v. Tibbs, No. 15-1060, 2017 WL
1314933, at *4 (6th Cir. Apr. 10, 2017) (“However, in
light of Beckles, we need not parse the Michigan
armed robbery statute to determine whether it satisfies the
force-as-an-element clause because it qualifies as a crime of
violence under the residual clause of U.S.S.G.
4B1.2(a).”). But even so, courts have ruled that the
Mississippi robbery statute does meet the physical force
requirement. See, e.g., United States v. Culpepper,
No. 3:12-CR-00118-CWR-FKB-10, 2017 WL 658777, at *3
(S.D.Miss. Feb. 15, 2017).
Craft again relies on Johnson in arguing that
robbery is not a “crime of violence” under §
4B1.2(a) because it is an enumerated offense under the
Commentary to § 4B1.2, but not in the body of §
4B1.2(a)(2). Beckles is dispositive of this issue,
as well. Because Beckles held that the residual
clause in § 4B1.2(a)(2) is not void for vagueness,
“[t]he residual clause therefore provides a textual
hook for the Guideline commentary's list of enumerated
offenses, making the commentary consistent with and an
interpretation or explanation of § 4B1.2 text.”
United States v. Garces, No. 16-40699, 2017 WL
1382069, at *1 (5th Cir. Apr. 18, 2017). Thus, Craft's
argument in this respect is likewise without merit.
THEREFORE ORDERED AND ADJUDGED that Petitioner Albert Craft,
Jr.'s  Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence is DENIED.
FURTHER ORDERED AND ADJUDGED that Petitioner Albert Craft,
Jr.'s  Motion for Voluntary Dismissal is DENIED as
ORDERED AND ADJUDGED.