Guest v. United States, CIVIL ACTION NO.: 5:18-cv-18

• Decision Date: 03 March 2021
• Docket Number: Case No.: 5:14-cr-17,CIVIL ACTION NO.: 5:18-cv-18
• Parties: ALAN GUEST, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Georgia

ALAN GUEST, Movant, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO.: 5:18-cv-18

Case No.: 5:14-cr-17

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION

March 3, 2021

ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Movant Alan Guest ("Guest"), who is currently housed at the Federal Correctional Complex in Coleman, Florida, filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence.¹ Doc. 1. Guest filed two Motions to Supplement, and the Government filed Responses. Docs. 20, 21, 35, 37. Guest has also filed a Motion for Summary Judgment and a Motion to Grant his § 2255, docs. 29, 38, and the Government has responded. Docs. 31, 39. The Government also filed its Response to Guest's § 2255 Motion. Doc. 35.

For the reasons which follow, I RECOMMEND the Court DENY Guest's § 2255 Motion, Motion for Summary Judgment, and Motion to Grant, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment, and DENY Guest in forma pauperis statuson appeal and a Certificate of Appealability. I GRANT Guest's Motions to Supplement but DENY Guest's request for an evidentiary hearing, doc. 1 at 14.

BACKGROUND

Guest was charged and indicted for conspiracy to possess with intent to distribute and distribute five grams or more of methamphetamine, in violation of 21 U.S.C. § 846 (count 1); two counts of distribution of a quantity of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (counts 2 and 3); and four counts of use of a communication facility, in violation of 21 U.S.C. § 843(b) (counts 4-7). United States v. Guest, 5:14-cr-17 (S.D. Ga.) ("Crim. Case"), Doc. 1. Guest's counsel, David McCrea, filed a number of pre-trial motions on Guest's behalf, which the Court dismissed as moot based on the parties' representations these motions had been resolved. Crim. Case, Docs. 15-21, 28.

Mr. McCrea was able to negotiate a plea agreement with the Government whereby Guest agreed to plead guilty to one count of distribution of a quantity of methamphetamine (count 3 of the indictment). Crim. Case, Doc. 32. In exchange, the Government agreed to not object to a recommendation Guest receive a three-level reduction for acceptance of responsibility and move the Court to dismiss the remaining counts against Guest. Id. at 2-3.

The Honorable Lisa Godbey Wood held a change of plea, or Rule 11, hearing. At the outset of this hearing, Judge Wood informed Guest the purpose of the hearing was to make sure (1) he understood the case pending against him and all the rights he was giving up if she accepted his plea, (2) he was pleading guilty because that was what he wanted to do after consultation with Mr. McCrea, and (3) there was a factual basis for the plea. Crim. Case, Doc. 44 at 3, 8-9. During the plea hearing, Drug Enforcement Agency Special Agent Robert Livingston provided the factual basis for the plea, Guest admitted to the truth of Livingston'stestimony, Judge Wood accepted Guest's plea, and Judge Wood directed the United States Probation Office to prepare a pre-sentence investigation report ("PSR"). Id. at 21-25. In the PSR, the Probation Office determined Guest had two prior felony convictions for crimes of violence, and, therefore, qualified as a career offender under U.S.S.G. § 4B1.1. PSR, ¶ 26. At the sentencing hearing, Judge Wood overruled Guest's objections to the PSR and concluded Guest was due to be sentenced as a career offender. Ultimately, Judge Wood sentenced Guest to 160 months' imprisonment, which was within the recommended guideline range. Crim. Case, Doc. 35.

Guest has now filed a § 2255 Motion to challenge his conviction and sentence, as supplemented. Docs. 1, 20, 37. The Government filed Responses. Docs. 21, 35, 40. This matter is fully briefed and ripe for review.

DISCUSSION

Guest contends his prior convictions under the Georgia terroristic threats statute are no longer qualifying predicate offenses under the career offender provision of the Sentencing Guidelines, § 4B1.1. Doc. 1 at 4. Relatedly, Guest contends since he no longer can be considered a career offender, he is entitled to receive a two-point reduction under Amendment 782. Id. at 5. Guest asserts his counsel was ineffective because he failed to inform Guest of the Government's obligation to prove the drugs at issue were methamphetamine or ice. Id. at 6-7. In addition, Guest maintains his plea was not entered into knowingly and voluntarily as a result of ineffective assistance of counsel.² Id. at 8. Guest contends Mr. McCrea rendered ineffectiveassistance by filing an Anders brief on appeal. Id. at 9. Guest seeks to be resentenced without the § 4B1.1 enhancement.

I. Whether Guest's Previous Convictions are Predicate Offenses

According to Guest, his prior convictions under Georgia's terroristic threats statute, O.C.G.A. § 16-11-37(a), no longer qualify as predicate offenses for application of the career offender enhancement under the Sentencing Guidelines, § 4B1.1. Doc. 1 at 16. Guest argues courts have determined the Georgia statute is "overbroad" and "incongruent with and broader than the conduct encompassed by" the Armed Career Criminal Act's ("ACCA") elements clause, and the determination is retroactively applicable to cases on collateral review. Id. at 18-19. Guest contends he should be resentenced without the career offender enhancement to a term of 92 to 115 months' imprisonment. Id. at 20-21. In his Supplements, Guest contends his terroristic threats convictions no longer qualify as predicate offenses under Davis v. United States, 139 S. Ct. 2319 (2019), or the First Step Act, § 401(c).³ Doc. 20 at 1-2; Doc. 37 at 1-2.

The Government argues the Eleventh Circuit Court of Appeals has determined Georgia's terroristic threat statute is divisible and a prior conviction for threatening "'to commit any crime of violence' qualifies as a violent felony under the ACCA." Doc. 35 at 8-9 (quoting United States v. Oliver, 962 F.3d 1311, 1321 (11th Cir. 2020)). In addition, the Government notes the definition of "violent felony" under the ACCA is virtually identical to the definition of "crime of violence" under § 4B1.1 (the "career offender" enhancement provision), and, therefore, decisions about one definition apply with equal force to the other. Id. at 9 (citing Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1335 (11th Cir. 2013)). The Government assertsGuest's prior convictions under Georgia's terroristic threats statute qualify as threatening to commit a crime of violence under Oliver, as he threatened to kill other people, and, therefore, qualify Guest as a career offender. Id. The Government also asserts Davis v. United States, 139 S. Ct. 2319 (2019), provides Guest with no relief because he was not charged with or convicted of an 18 U.S.C. § 924(c) offense, his prior convictions are predicate offenses under the elements clause of the career offender provision, and the United States Supreme Court has already found the residual clause of § 4B1.2(a) is constitutional. Id. In addition, the Government notes Guest's First Step Act arguments fail because § 401 of the Act amends only the Controlled Substances Act, not the ACCA or any Guidelines' provisions and because § 401 applies to an offense committed before the Act's enactment only if a sentence was not imposed as of the date of enactment, and Guest's sentence was imposed well before enactment. Id. at 10.

Under § 4B1.1 of the Sentencing Guidelines, a defendant is properly designated as a career offender if he was at least 18 years old at the time he committed the offense for which he is being sentenced, that offense "is a felony that is either a crime of violence or a controlled substance offense," and he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Only the last requirement is at issue here. "The term 'crime of violence' means 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 . . . ." U.S.S.G. § 4B1.2(a)(1).

The career offender provision of the Guidelines was applied to Guest based on his 2003 and 2008 convictions in the Pierce County Superior Court for making terroristic threats againstsheriff's deputies.⁴ PSR, ¶¶ 26, 33, 37. Both of Guest's convictions under Georgia law involved at least the threatened use of violence against other persons. Id. at ¶¶ 33, 37. These convictions are qualifying "crimes of violence" under § 4B1.1 because they were state law crimes, punishable by at least one year of imprisonment, for making terroristic threats. O.G.G.A. § 16-11-37(a) (2010) ("A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another . . . ."); O.C.G.A. § 16-11-37(c) ("A person convicted of the offense of a terroristic threat shall be punished by a fine of not more than $ 1,000.00 or by imprisonment for not less than one nor more than five years, or both.).

In Oliver, the Eleventh Circuit Court of Appeals held "Georgia's terroristic-threats statute, O.C.G.A. § 16-11-37(a) (2010), is divisible, and the threat that predicated [defendant]'s conviction—a threat 'to commit any crime of violence'—requires the threatened use of violent force against another. [Defendant]'s terroristic-threats conviction under Georgia law therefore qualifies as a violent felony under the ACCA's elements clause."⁵ 962 F.3d at 1321. Here, Guest was convicted under the same version of O.C.G.A. § 16-11-37(a) as Oliver was. As noted in the PSR, the probation officer verified Guest's two terroristic threats convictions using thecharging documents and judgment. The circumstances underlying Guest's relevant convictions were Guest threatening three people he had previously assaulted with bodily...