United States v. Sumner

Decision Date30 March 2022
Docket NumberCriminal No. 00-383-01 (CKK)
Parties UNITED STATES of America, v. Dwayne Keith SUMNER, Defendant.
CourtU.S. District Court — District of Columbia

Nicole Agnello Raspa, Timothy Ronald Cahill, William Edward Schurmann, Assistant U.S. Attorneys, U.S. Attorneys Office for the District of Columbia, Special Proceedings Division, Washington, DC, Ronald L. Walutes, Jr., Assistant U.S. Attorney, U.S. Attorney's Office for the Eastern District of Virg, Alexandria, VA, for United States of America.

A.J. Kramer, Joanna Munson Perales, Public Defenders, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.

Dwayne Keith Sumner, Talladega, AL, Pro Se.



Pending before this Court is Defendant Dwayne Keith Sumner's [56] Supplemental Motion to Vacate Judgment under 28 U.S.C. § 2255, and the United States’ [63] Opposition thereto.1 Defendant Dwayne Keith Sumner ("Defendant" or "Mr. Sumner") is currently serving a twenty-five-year sentence after entering a guilty plea to one count of Attempted Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a) and (d). See Judgment, ECF No. 24.


Defendant was indicted initially on one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). Indictment, ECF No. [7]. At that time, United States Sentencing Guideline ("U.S.S.G.") § 4B1.1(a) provided a sentencing enhancement for a person classified as a Career Offender, meaning a person who was at least eighteen years old at the time of his instant offense, whose present conviction was one for a "crime of violence" or a "controlled substance offense," and who had two prior felony convictions for those type of offenses.2 The Court notes that at the time of Mr. Sumner's sentencing the U.S.S.G. were mandatory and binding on all judges. See United States v. Booker , 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Additionally, the "three strikes" provision of 18 U.S.C. § 3559(c) required that a defendant convicted of a "serious violent felony" be sentenced to life imprisonment if they had at least two previous convictions for "serious violent felonies."3 At the time of his indictment for attempted federal bank robbery, Mr. Sumner had been convicted of multiple prior offenses. Defendant has a 1991 Pennsylvania conviction for robbery and a 1986 Pennsylvania conviction for rape, involuntary deviate sexual intercourse, and robbery. Def.’s Supp. Mot., ECF No. 56, at 5.

Following negotiations with the Government, Mr. Sumner decided to plead guilty by information to attempted armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). See Plea Agreement, ECF No. [21]. At the time of his plea, Mr. Sumner was represented by a federal public defender. In exchange for Defendant's plea, the Government agreed to forgo further criminal charges and to withdraw its notice of mandatory life imprisonment pursuant to the "three strikes" provision of 18 U.S.C. § 3559(c)(4). Id. The parties agreed that twenty-five years was an appropriate sentence and would become binding upon acceptance by this Court, pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. Id.

On the same day the plea agreement was signed, this Court held a guilty plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. At the hearing, the Court questioned Defendant and the Government regarding the specific details of the plea agreement and the factual proffer, and Mr. Sumner—who was sworn and answered under oath—indicated his understanding and acceptance of both the agreement and the facts underlying the charge against him. See generally Transcript ("Tr.") of May 3, 2001 Plea Hearing, ECF No. 31. On September 4, 2001, the Court sentenced Defendant to twenty-five years of imprisonment to be followed by five years of supervised release. See Tr. of Sentencing Hearing, ECF No. 25, at 8. Mr. Sumner did not file a direct appeal from his conviction or his sentence.

On July 24, 2002, Defendant filed a motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, which this Court denied. Mem. Op., ECF No. [32]; Order, ECF No. [33]. On April 25, 2005, Petitioner filed an Application for Certificate of Appealability which this Court also denied. Mem. Op., ECF No. [38]; Order, ECF No. [39]. Defendant moves again for relief pursuant to Section 2255, now relying on Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which held unconstitutionally vague the "residual clause" found in the definition of the term "violent felony" in the Armed Career Criminal Act (ACCA). See id. at 2557 ("[T]he indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges[.]") Defendant asserts that the residual clause addressed in Johnson is "identical to the mandatory [Sentencing] Guidelines’ residual clause and materially indistinguishable from § 3559(c) ’s residual clause[.]" Def.’s Supp. Mot., ECF No. 56, at 3.

Putting the Johnson decision in context, this Court notes first that, in January 2005, the Supreme Court of the United States "severed and excised" 18 U.S.C. § 3553(b)(1) — the provision that made the Guidelines mandatory — with the result that the Guidelines were made "effectively advisory."

United States v. Booker , 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On June 26, 2015, the Supreme Court in Johnson v. United States held that the residual clause of the Armed Career Criminal Act, § 924(e)(2)(B)(ii), is unconstitutionally vague. Id. at 2563. Then, on April 18, 2016, the Supreme Court held in Welch v. United States , 578 U.S. 120, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), that its decision in Johnson announced a substantive rule that has a retroactive effect in cases on collateral review. Id. at 1268.4

In United States v. Sheffield , the Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") extended the reasoning of Johnson to the United States Sentencing Guidelines ("U.S.S.G."), finding that the similarly worded residual clause of U.S.S.G. § 4B1.2(b) is also unconstitutional under the void-for-vagueness doctrine. Sheffield , 832 F.3d 296, 312-13 (D.C. Cir. 2016). In Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 197 L.Ed.2d 145 (2017), however, the Supreme Court held that the residual clause of U.S.S.G. § 4B1.2(a)(2) is not void for vagueness. Id. at 890. More specifically, the Supreme Court held that because "the advisory Guidelines ... merely guide the exercise of a court's discretion," the Court held they "are not subject to a vagueness challenge under the Due Process Clause." Id. at 892.

Although Beckles overruled Sheffield for advisory guidelines cases, the Supreme Court in Beckles noted that its holding did not render the Sentencing Guidelines immune from constitutional scrutiny, including scrutiny under the due process clause. Id. at 895-96. Rather, the majority opinion of the Supreme Court held specifically that the void-for-vagueness doctrine was inapplicable to the advisory Sentencing Guidelines. Beckles , 137 S. Ct. at 896. The Supreme Court explained: "Unlike the ACCA, ... the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Id. at 892.5

Subsequently, in Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1223, 200 L.Ed.2d 549 (U.S. 2018), the Supreme Court applied the reasoning in Johnson to 18 U.S.C. § 16(b) and declared the residual clause therein void for vagueness. In United States v. Eshetu , on a panel rehearing, the D.C. Circuit applied the reasoning from Johnson and Dimaya to vacate in part the decision in United States v. Eshetu , 863 F.3d 946 (D.C. Cir. 2017) and hold that the nearly identical residual clause in 18 U.S.C. § 924(c)(3)(B) is void for vagueness. Eshetu , 898 F.3d 36, 38 (D.C. Cir. 2018) ; see also United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019) (reaching the same result, i.e., that the residual clause in 18 U.S.C. § 924(c)(3)(B) is void for vagueness).

In light of these holdings, Mr. Sumner argues that he never should have qualified for enhanced sentencing under U.S.S.G. § 4B1.1 ("Career Offender Guideline") or 18 U.S.C. § 3559 because the residual clauses in the Career Offender Guideline and Section 3559 are similar or identical to the residual clause of Armed Career Criminal Act that was declared unconstitutionally vague in Johnson . Def.’s Supp. Mot., ECF No. 56, at 1, 3. With these residual clauses void for vagueness, Defendant argues that his predicate offenses of federal attempted armed bank robbery [the instant case] and his Pennsylvania charges of rape, involuntary deviate sexual intercourse, and robbery do not qualify as "crimes of violence" triggering the Career Offender Guideline because these offenses "do not meet a constitutional definition under the remaining enumerated or elements clauses" of those statutes. Id. at 4. Employing the same logic, Mr. Sumner argues that his prior Pennsylvania offenses do not qualify as "serious violent felonies" triggering § 3559. Id. Defendant asserts that his willingness to sign a plea deal for federal attempted armed bank robbery was "driven by the parties’ and the Court's understanding that, but for the negotiated plea, [he] would have been subject to the enhanced sentences called for by the mandatory Career Offender Guideline and § 3559(c)." Id. at 5. Mr. Sumner maintains that the sentence which resulted from this plea deal was imposed in violation of the Constitution because it was based on a faulty understanding of the applicability of the Guidelines and § 3559. Id.

The Government opposed Defendant's motion "for at least seven reasons," Govt. Opp'n, ECF No. 63, at 3,...

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3 cases
  • United States v. Smith
    • United States
    • U.S. District Court — District of Columbia
    • May 16, 2022
    ...effort to foreclose the Johnson avenue to relief through procedural default thus fails. See United States v. Sumner , No. 00-cr-383 (CKK), 597 F.Supp.3d 120, 135 (D.D.C. Mar. 30, 2022) ("With regard to the Government's argument that [defendant] procedurally defaulted his [ Johnson ] claims,......
  • United States v. Johnson
    • United States
    • U.S. District Court — District of Columbia
    • June 27, 2023
    ... ... seeking the benefit of Johnson and Davis ... See, e.g. , Smith , 605 F.Supp.3d at 14 ... (Howell, C. J.) ... (rejecting procedural default argument for ... post- Johnson § 2255 motion); United States ... v. Sumner , 597 F.Supp.3d 120, 135 (D.D.C. 2022) ... (Kollar-Kottelly, J.) (same); Sorto v. United ... States , No. 08-cr-167-4 (RJL), 2022 WL 558193, at *2 ... (D.D.C. Feb. 24, 2022) (Leon, J.) (same); Hammond , ... 354 F.Supp.3d at 43 (Howell, C. J.) (same); United States ... ...
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    • U.S. District Court — District of Columbia
    • March 31, 2022

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