Bogan v. United States

• Decision Date: 07 April 2017
• Docket Number: CIVIL ACTION NO. 16-00335-KD,CRIMINAL ACTION NO. 13-00274-KD-N
• Parties: PAUL A. BOGAN, BOP Reg. # 13813-003, Petitioner, v. UNITED STATES OF AMERICA Respondent.
• Court: U.S. District Court — Southern District of Alabama

PAUL A. BOGAN,BOP Reg. # 13813-003, Petitioner, v. UNITED STATES OF AMERICA Respondent.

CIVIL ACTION NO. 16-00335-KD

CRIMINAL ACTION NO. 13-00274-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

April 7, 2017

REPORT AND RECOMMENDATIONS

Paul A. Bogan, a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 31¹) and supporting memorandum (Doc. 32). The motion has been referred for appropriate action to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of these proceedings brought under 28 U.S.C. § 2255, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts. See S.D. Ala. GenLR 72(b); (6/30/2016 electronic reference).

After conducting preliminary review in accordance with Rule 4(b) of the Rules Governing Section 2255 Proceedings, the undersigned entered an ordersetting deadlines for the Government to file a response to the motion, and for Bogan to file a reply to the Government's response. (Doc. 33). The Government has timely filed its response in opposition to Bogan's § 2255 motion (Doc. 34). The deadline for Bogan to submit a reply has passed, and to date he has not done so. The § 2255 motion is now under submission.

Having reviewed the parties' submissions in accordance with Rule 8 of the Rules Governing Section 2255 Proceedings, the undersigned finds that an evidentiary hearing is not warranted and that Bogan's § 2255 motion (Doc. 31) is due be DISMISSED with prejudice. The undersigned further finds that Bogan is not entitled to a certificate of appealability or to proceed in forma pauperis on appeal.

I. Background

On December 30, 2013, Bogan was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (See Doc. 1). Bogan pled guilty to this offense on March 30, 2014. (See Doc. 20). Prior to sentencing, the Probation Office for this District prepared a Presentence Investigation Report ("PSI"), to which neither Bogan nor the Government filed written objections. The PSI, applying U.S.S.G. § 2K2.1(a)(2) (2013), assigned Bogan a base offense level of 24 because he had committed the charged offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." (Doc. 24 at 5, § 21). Ultimately, the PSI calculated a total offense level of 23 and a criminal history category of VI, for a guideline imprisonment range of 92 to 115 months. (See id. at 16, § 74). The Court, adopting the PSI "without change" (see Doc. 29 at 1), sentenced Bogan to 92 months imprisonment, entering written judgment on the record in July 2014. (Doc. 28). Bogan did not appeal his conviction or sentence. No further activity occurred in this criminal action until Bogan filed the present § 2255 motion (Doc. 31) and supporting memorandum (Doc. 32) on June 20, 2016. See Rule 3(d) of the Rules Governing Section 2255 Proceedings.

II. Analysis

A. Claim for Relief

Bogan's sole claim in the present § 2255 motion is that the Court's application of U.S.S.G. § 2K2.1(a)(2) rendered his sentence unconstitutional under the reasoning of the United States Supreme Court's decision in Johnson v. United States, — U.S. —, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which has been held to apply retroactively on collateral review. Mays v. United States, 817 F.3d 728, 737 (11th Cir. 2016) (per curiam); Welch v. United States, — U.S. —, 136 S. Ct. 1257, 194 L. Ed. 2d 387 (2016).

A defendant convicted of unlawful possession of a firearm receives an enhanced base offense level of 24 if he "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). The definition of "crime of violence" includes "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... 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." U.S.S.G. § 4B1.2(a).

...

In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Armed Career Criminal Act increases sentences for certain offenders who have three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The definition of "violent felony" under the Act is nearly identical to the definition of "crime of violence" under the guidelines, and both definitions include an identical residual clause that encapsulates crimes that "present[ ] a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2(a)(2).

United States v. Matchett, 802 F.3d 1185, 1193-94 (11th Cir. 2015).

Like Matchett, Bogan "argues ... that because [the Eleventh Circuit Court of Appeals] interpret[s] the residual clause of section 4B1.2(a) of the advisory guidelines in the same manner as [it] interpret[s] the residual clause of the Armed Career Criminal Act, see Gilbert v. United States, 640 F.3d 1293, 1309 n. 16 (11th Cir. 2011) (en banc), the residual clause of section 4B1.2(a) is also unconstitutionally vague." Id. As the Government correctly points out, and as Bogan acknowledges, however, that argument was rejected in Matchett, which held that "[t]he vagueness doctrine ... does not apply to advisory guidelines." Id. Accord, e.g., United States v. Wilson, 662 F. App'x 693, 697 (11th Cir. 2016) (per curiam) (unpublished) ("[I]n this circuit, the vagueness doctrine applied by the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), is inapplicable to the advisory Guidelines. United States v. Matchett, 802 F.3d 1185, 1195-96 (11th Cir. 2015). In Matchett, we held that the holding in Johnson is limited to criminal statutes that define elements of a crime or fix punishments. Id. at 1194. []Because Wilson's sentence was enhanced pursuant to the Sentencing Guidelines -- which are not subject to Fifth Amendment vagueness challenges, see id. at 1195-1196 - Wilson's claim fails."). Recently, the United States Supreme Court agreed with Matchett, holding that "the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause..." Beckles v. United States, 137 S. Ct. 886, 890 (2017). In light of Matchett and Beckles, Bogan's sole claim is meritless.

Even if this Court were to disregard Matchett and Beckles, and find that Johnson applies to the Sentencing Guidelines, Bogan would still be due no relief because, as the Government correctly argues in its response, § 2K2.1(a)(2) would apply to him even without reference to § 4B1.2(a)(2)'s residual clause. "In Johnson, the United States Supreme Court clarified that its decision declaring the residual clause void for vagueness did not call into question the validity of the elements clause or the enumerated clause in the Act." In re Burgest, 829 F.3d 1285, 1287 (11th Cir. 2016). As stated in Bogan's PSI, Bogan had sustained the following two Alabama felony convictions prior to committing the offense to which he pled guilty here:

1. a 2006 conviction for first-degree burglary. See (Doc. 24 at 8 - 9, § 34 (setting forth facts of the offense, which involved burglary of a dwelling)); Ala. Code § 13A-7-5 (the crime of burglary in the first degree involves "knowingly and unlawfully enter[ing] or remain[ing] unlawfully in a dwelling with intent to commit a crime therein").

2. A 2008 conviction for third-degree robbery. See (Doc. 24 at 10 - 11, § 36); Ala. Code § 13A-8-43(a) ("A person commits the crime of robbery in the third degree if in the course of committing a theft he: (1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or (2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.").

The version of § 4B1.2(a) under which Bogan was sentenced defined a "crime of violence" as, inter alia, "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another, or ... is a burglary of a dwelling ... "² As the statutorydefinitions of the offenses and the uncontested facts in Bogan's PSI demonstrate, his first-degree burglary conviction is "a burglary of a dwelling," and his third-degree robbery conviction "has as an element the use, attempted use, or threatened use of physical force against the person of another..." See United States v. Wood, 209 F.3d 847, 851 (6th Cir. 2000) ("The statutory definition clearly indicates that Alabama's robbery in the third degree offense has as an element 'the use, attempted use, or threatened use of physical force against a person.' There is simply no ambiguity in the language of the Alabama statute: to be guilty of robbery in the third degree a defendant must either use force or threaten the imminent use of force against a person sometime during the commission of a theft. Wood's argument that robbery in the third degree is not a crime of violence because it could be committed without force therefore is meritless."); U.S.S.G. § 4B1.2, Application Note 1 of the Commentary (2013) (" 'Crime of violence' includes ... robbery ... and burglary of a dwelling."); U.S.S.G. § 2K2.1, Application Note 1 of the Commentary (2013) ("For purposes of this guideline: ... 'Crime of...