United States District Court, N.D. Mississippi
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
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,  and the instant motion will be denied.
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.
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
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. 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
[Motion at 13].
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
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.
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.
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
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 ...