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United States v. Dix

United States District Court, D. Nevada

March 22, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
PAUL LUTHER DIX, Defendants.

          ORDER

         Presently before the court is petitioner Paul Luther Dix's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 62).

         I. Facts

         On August 8, 2014, petitioner pleaded guilty to one count of felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and 924(a)(2). (ECF No. 33). In the plea agreement, petitioner knowingly and expressly waived, inter alia, "all collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence and the procedure by which the Court adjudicated guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel." (ECF No. 34 at 9-10).

         On January 12, 2015, the court sentenced petitioner to 83 months in custody to run concurrently with petitioner's state sentence, followed by three (3) years supervised release. (ECF No. 39). Petitioner was advised of his rights to file an appeal. (ECF No. 39). The court entered judgment on January 13, 2015. (ECF No. 40).

         In the instant motion, petitioner moves to vacate the sentencing enhancement applied to his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), and requests that the court resentence him to 20 months. (ECF No. 62).

         II. Legal Standard

         Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

         Limitations on § 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         III. Discussion

         In the instant motion, petitioner requests that the court vacate his erroneous sentencing enhancement pursuant to Johnson and resentence him to 20 months. (ECF No. 62). In particular, petitioner argues that his sentence violates due process of law and that under Johnson, he does not qualify for the United States Sentencing Guideline (“USSG”) § 2K2.1 sentencing enhancement. (ECF No. 62 at 3). Petitioner asserts that his sentence was based on a finding that his prior convictions qualified as “crimes of violence” under USSG § 4B1.2(a), which in turn resulted in an increased base level under § 2K2.1(a)(2). (ECF No. 62 at 3).

         The court disagrees. In Johnson v. United States, the United States Supreme Court held the residual clause in the definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), to be unconstitutionally vague. 135 S.Ct. at 2557. In particular, the Supreme Court held that “increasing a defendant's sentence under the clause denies due process of law.” Id. The ACCA defines “violent felony” as any crime punishable by imprisonment for a term exceeding one year, that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing words emphasized above have come to be known as the ACCA's “residual ...


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