United States v. Upshur, Criminal Action No. 10-251 (RBW)

• Decision Date: 25 February 2019
• Docket Number: Criminal Action No. 10-251 (RBW)
• Parties: UNITED STATES OF AMERICA v. DARREN UPSHUR, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. DARREN UPSHUR, Defendant.

Criminal Action No. 10-251 (RBW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 25, 2019

MEMORANDUM OPINION

The defendant, Darren Upshur, is currently serving a 188-month term of imprisonment that was imposed by this Court following his plea of guilty to one count of unlawful distribution of fifty grams or more of cocaine base, also known as crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii) (2006). See Plea Agreement at 1 (Nov. 9, 2011); Judgment in a Criminal Case ("Judgment") at 2 (Feb. 15, 2012). Currently pending before the Court are the defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Def.'s Mot.") and his Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255 ("Def.'s Supp. Mot."), which "move[] this Court to vacate his sentence and enter an amended judgment sentencing him to time-served, in light of the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015)." Def.'s Supp. Mot. at 1. Upon consideration of the parties' submissions,¹ the Court concludes that it must deny the defendant's motion for the reasons explained below.

I. BACKGROUND

After the defendant entered his guilty plea, the United States Probation Office (the "Probation Office") submitted to the Court its final Presentence Investigation Report (the "Report" or "PSR"), which included a sentencing guidelines calculation pursuant to the United States Sentencing Guidelines (the "Sentencing Guidelines" or "USSG"). See PSR at 1 (Jan. 18, 2012). The Report reflected a total criminal history score of six points based on two prior felony convictions: (1) a 1999 distribution of heroin conviction adjudicated in the Superior Court of the District of Columbia ("Superior Court"), see id. ¶ 36, and (2) a 2000 attempted robbery conviction also adjudicated in Superior Court, see id. ¶ 37.² Based on these convictions, the Probation Office determined that the defendant qualified as a career offender pursuant to § 4B1.1(a) of the Sentencing Guidelines. See id. ¶ 24.³ Thus, although the Probation Office recognized that "a criminal history score of six [would generally have] establish[ed] a criminal history category of III," id. ¶ 39, because "[t]he defendant [wa]s a career offender[,] [ ] the criminal history category [wa]s VI," id. ¶ 40. Accordingly, "[b]ased upon a total offense level of31 and a criminal history category of VI," the Report calculated "the [applicable] guideline imprisonment range [a]s 188 months to 235 months." Id. ¶ 100.

The Court sentenced the defendant on February 1, 2012. See Judgment at 1. At the sentencing hearing, the Court "accept[ed] the [Probation Office's final Report] and [its] Guidelines [calculations] as accurate" without any objection by defense counsel, Def.'s Supp. Mot., Exhibit ("Ex.") A (Transcript of Sentencing Before the Honorable Reggie B. Walton (Feb. 1, 2012) ("Sentencing Tr.")) 3:8-10, 17-18, and, upon "consider[ing] all the various factors in deciding [ ] the appropriate sentence [ ], including the Guideline sentence," it concluded that a sentence at "the bottom end of the Guidelines" was appropriate, id., Ex. A (Sentencing Tr.) 7:17-21. Accordingly, the Court sentenced the defendant to a 188-month term of imprisonment. See Judgment at 2.

Subsequently, on June 26, 2015, the Supreme Court issued its decision in Johnson. See ___ U.S. at ___, 135 S. Ct. at 2551. On June 21, 2016, the defendant filed an abridged motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (2012), see generally Def.'s Mot., in accordance with the Standing Order issued by the Chief Judge of this Court, see Standing Order at 2 (June 2, 2016) (authorizing prisoners seeking post-conviction relief based on Johnson "to file an abridged motion[] pursuant to 28 U.S.C. § 2255[] . . . by June 26, 2016"). The defendant's motion, as supplemented on October 31, 2017, see Def.'s Supp. Mot. at 1, is the subject of this Memorandum Opinion.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (the "AEDPA") permits a federal prisoner in custody pursuant to a sentence imposed by a federal court to "move the court which imposed the sentence to vacate, set aside[,] or correct the sentence" "upon the ground that thesentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). However, it "limits the time in which a prisoner may bring such a motion," United States v. Cicero, 214 F.3d 199, 200 (D.C. Cir. 2000), providing that

[a] [one]-year period of limitation shall apply to [any such] motion . . . [, and t]he limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

III. ANALYSIS

Under the version of the Sentencing Guidelines in effect when the defendant was sentenced,

[a] defendant [wa]s a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

USSG § 4B1.1(a) (2011). The Sentencing Guidelines further defined a "crime of violence" as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or(2) 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.

Id. § 4B1.2(a). The clause "or otherwise involves conduct that presents a serious potential risk of physical injury to another" is known as the "residual clause." Beckles v. United States, ___ U.S. ___, ___, 137 S. Ct. 886, 891 (2017).

The defendant contends that his "prior [ ] attempted robbery conviction could only qualify as a crime of violence under the residual clause" of § 4B1.2(a) of the Sentencing Guidelines, Def.'s Supp. Mot. at 3, and, thus, "his sentence was unconstitutionally, unlawfully, and unjustly increased based on an advisory [Sentencing] Guidelines provision that, as the Supreme Court recognized for the first time in Johnson, was so meaningless that this Court could not objectively, fairly, and reliably apply it," id. at 12. The government argues in response that the Court should deny the defendant's motion for several reasons, including that "his motion is untimely under 28 U.S.C. § 2255(f)," he "has procedurally defaulted the challenge he now seeks to raise," and "his claim is not cognizable under § 2255." Gov't's Opp'n at 7. The Court first addresses the defendant's timeliness argument, as that issue is potentially dispositive.

A. Timeliness Under § 2255(f)

"In most cases, the operative date from which the limitation period is measured will be the . . . date on which the judgment of conviction becomes final." Dodd v. United States, 545 U.S. 353, 357 (2005) (internal quotation marks and citation omitted). "Where, as here, 'a federal criminal defendant does not appeal to the court of appeals, the judgment becomes final upon the expiration of the period in which the defendant could have appealed to the court of appeals.'" United States v. Ingram, 908 F. Supp. 2d 1, 4 (D.D.C. 2012) (Walton, J.) (quoting Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004)). Here, because the defendant did not notice an appeal from the judgment imposed by this Court on February 1, 2012, seeJudgment at 1, his judgment became final fourteen days thereafter, on February 15, 2012, see Fed. R. App. P. 4(b)(1)(A) (2012) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days . . . of[] the entry of [ ] the judgment . . . being appealed[.]"). Thus, because the defendant did not file the instant motion until over four years later, see Def.'s Mot. at 1, his motion is untimely under § 2255(f)(1), see 28 U.S.C. § 2255(f)(1).

Nonetheless, the defendant contends that his motion is timely pursuant to 28 U.S.C. § 2255(f)(3), which provides that a federal prisoner may file a § 2255 motion within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Specifically, he argues that his "motion satisfies the statute of limitations [under § 2255(f)(3)] because it was filed within one year from the date on which the Supreme Court[] in Johnson[] newly and initially recognized the right he asserts—the right not to serve a sentence increased because of the residual clause, which [ ] is retroactively applicable to cases on collateral review." Def.'s Supp. Mot. at 40. The government responds that "§ 2255(f)(3) does not apply" because "Johnson did not recognize the right that the defendant asserts," Gov't's Opp'n at 14, as it "recognized [only] a right not to...