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Cheers v. United States

United States District Court, N.D. Mississippi

September 11, 2017

MARIO CHEERS PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE

         Petitioner Mario Cheers, a federal prisoner, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government has responded in opposition to the motion, and the parties have also submitted supplemental arguments addressing recent appellate court decisions in this context. Having considered the pleadings and the record, including the relevant parts of the underlying criminal case, the Court finds that an evidentiary hearing is unnecessary, [1] and the instant motion will be denied.

         On May 30, 2003, following his guilty plea, Cheers was convicted of armed bank robbery and brandishing a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). [Docket entry 41 at 1]. After finding that Cheers was a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2, this Court sentenced him to a term of 403 months' imprisonment. This court reached this conclusion after adopting the finding of the presentence report that he had at least two qualifying prior convictions in Tennessee that supported the career offender enhancement.

         In the instant motion, petitioner argues that, in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), he is no longer a career offender because his prior Tennessee convictions for aggravated robbery no longer qualify as “crimes of violence.” In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague. 135 S.Ct. 2551, 2557 (2015). In so doing, the Supreme Court wrote that the “indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557.

         In his motion, petitioner seeks to use Johnson to invalidate one count of his conviction and also to argue that his sentencing as a career offender was unlawful. This court first addresses petitioner's argument that, since the residual clause of § 924(c) is similarly worded to § 924(e), the former provision must be struck down as unconstitutionally vague and his conviction on the § 924(c) count set aside.[2] In arguing that he is actually innocent of this count, petitioner argues that:

The § 924(c) count of conviction alleged that Mr. Cheers used a firearm during and in relation to a “crime of violence.” Specifically, the count alleged that an underlying “crime of violence” for the § 924(c) charge was armed bank robbery. However, post-Johnson, armed bank robbery categorically fails to qualify as a “crime of violence.” Therefore, Mr. Cheers is actually innocent of the § 924(c) offense, and his conviction on this count cannot be sustained. . . .
The relevant portion of § 924(c) defining a “crime of violence” has two clauses. The first clause B § 924(c)(3)(A) B is commonly referred to as the force clause. The other B § 924(c)(3)(B) B is commonly referred to as the residual clause. The § 924(c) residual clause is materially indistinguishable from the ACCA residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) that the Supreme Court in Johnson struck down as void for vagueness. It follows that the § 924(c) residual clause is likewise unconstitutionally vague.

[Motion at 13].

         Thus, petitioner argues that § 924(c)(3)(B) is unconstitutionally vague in light of Johnson, but this court finds this argument to be defeated by a recent Fifth Circuit decision. In United States v. Garcia, 857 F.3d 708, 711 (5th Cir. 2017), the petitioner, like Cheers in this case, argued that his conviction under 18 U.S.C. § 924(c)(1)(A) for possessing, brandishing, or discharging a firearm “during and in relation to any crime of violence” should be set aside. Like petitioner, Garcia argued that his § 924(c) conviction was unconstitutionally vague in light of Johnson, “depriving [him] of fair notice as to the content [of] his offense under the due process clause.” Id. The Fifth Circuit squarely rejected this argument, writing that:

In [Johnson] the Supreme Court held that a somewhat similar provision, the residual clause of 18 U.S.C. § 924(e), was unconstitutionally vague. However, our Court subsequently held that 18 U.S.C. § 16(b), which contains wording almost identical to that of § 924(c)(3)(B), is not unconstitutionally vague. United States v. Gonzalez-Longoria, 831 F.3d 670, 674B77 (5th Cir. 2016) (en banc), petition for cert. filed (U.S. Sept. 29, 2016) (No. 16B6259). To preserve this issue for further review, Garcia argues that Gonzalez-Longoria was wrongly decided. But because Garcia concedes that Gonzalez-Longoria is controlling, we affirm his conviction under § 924(c).

Garcia, 857 F.3d at 711.

         The Fifth Circuit had previously reached a similar conclusion in United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017), and, in light of this adverse precedent, petitioner concedes in his amended petition that his argument on this issue “is contrary to Fifth Circuit law.” [Amended petition at 16]. In so conceding, Cheers notes the possibility that a case currently pending before the U.S. Supreme Court might conceivably overrule the Fifth Circuit's approach in this context, see Sessions v. Dimaya, Supreme Court No. 15-1498, but, at this juncture, this court is clearly bound by Fifth Circuit precedent on this issue. This court finds Garcia and Jones to be directly on point, and it therefore concludes that petitioner's argument that his § 924(c) conviction should be set aside is without merit.

         This court next addresses petitioner's argument that, in light of Johnson, his sentencing as a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2 must be set aside. In so arguing, petitioner asserts that in light of Johnson “the identical residual clause in the career offender provision . . . is also void for vagueness.” [Motion at 1]. In addressing this issue, this court must first consider a recent U.S. Supreme Court decision which casts a long shadow in this context. On March 6, 2017, the Supreme Court issued a decision in Beckles v. United States, 137 S.Ct. 886 (2017), which held that the U.S. Sentencing Guidelines, including U.S.S.G. § 4B1.2(a)'s residual clause, are not subject to vagueness challenges under the Due Process Clause. The Supreme Court concluded that, unlike the residual clause in the ACCA (which it considered in Johnson), the Guidelines do not fix the range of sentences allowed, but instead guide the court's discretion in determining the appropriate sentence. Id. at 892. The Supreme Court accordingly held that “the advisory Sentencing Guidelines, including § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine.” Id.

         Importantly, however, the Supreme Court in Beckles did not address the issue of whether its holding applied to defendants who were sentenced under the mandatory guideline scheme which prevailed prior to the U.S. Supreme Court's 2005 decision in United States v. Booker,543 U.S. 220, 160 L.Ed.2d 621 (2005). This fact is of crucial importance in ...


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