United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Movant Dwayne Lawrence
Clark (Clark)'s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 [#28] and the
Government's Motion to Dismiss Clark's Request for 28
U.S.C. § 2255 Relief [#33]. Having reviewed the file,
the documents, and the governing law, the Court now enters
September 21, 2010, Clark was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Indictment [#1]. Clark pled guilty on November 22,
pleading guilty, Clark confirmed he had eight prior felony
convictions for a variety of offenses including two separate
convictions for possession of a controlled substance. Factual
Basis [#19] at 2. Clark's Presentencing Report (PSR)
reflected that Clark had twenty-nine prior convictions.
light of Clark's extensive criminal history, the PSR
recommended a sentence at or near the top of the advisory
guideline. Because Clark had two prior Texas felony drug
convictions that qualified as "controlled substance
offenses" under the United States Sentencing Guidelines
(USSG) § 4B1.2, a base offense level of 24 applied.
See U.S.S.G. 2K2.1(a)(2). Additionally, because the
firearm Clark had possessed was stolen, the base level
offense was enhanced by 2. See Id. at (b)(4)(A).
However, the PSR applied a three-level reduction under §
3B1.1 for acceptance of responsibility, which resulted in an
offense level of 23. See U.S.S.G § 3B1.1. The
PSR then calculated a sentencing range of 92 to 115 months.
to a Federal Rule of Criminal 11 (c)(1)(C) plea agreement,
Clark and the Government agreed on a 108-month sentence
followed by three years of supervised release and a mandatory
$100 special assessment. Subsequently, the Court sentenced
Clark to 108 months of imprisonment followed by a three-year
term of supervised release. J. & Commitment [#24]. Clark
was not subjected to an enhanced, fifteen-year minimum
sentence under the Armed Career Criminal Act (ACCA). See
Id. Clark did not file a direct appeal.
April 2016, this Court appointed the Federal Public Defender
to represent Clark in potentially raising a claim under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Order of Apr. 14, 2017 [#26]. Following notice from the
Federal Public Defender that Clark was not eligible for
relief under Johnson, the Court exempted Clark from
further consideration of relief. Order of June 10, 2016
February 7, 2017, Clark placed his Motion to Vacate, Set
Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255
in the prison mail system. Mot. Vacate [#28] at 13. The
Government filed a motion to dismiss on March 23, 2017. Mot.
Dismiss [#33]. Clark did not respond. The motions are now
ripe for the Court's consideration.
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255: (1) the imposition of a sentence in
violation of the Constitution or the laws of the United
States; (2) a lack of jurisdiction of the District Court that
imposed the sentence; (3) the imposition of a sentence in
excess of the maximum authorized by law; and (4) the sentence
is otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). Section 2255 is an extraordinary measure; it
cannot be used for errors that are not constitutional or
jurisdictional if those errors could have been raised on
direct appeal. United States v. Stumpf, 900 F.2d
842, 845 (5th Cir. 1990). If the error is not of
constitutional or jurisdictional magnitude, the movant must
show the error could not have been raised on direct appeal
and would, if condoned, "result in a complete
miscarriage of justice." United States v.
Smith, 32 F.3d 194, 196 (5th Cir. 1994). In addition, a
defendant who raises a constitutional or jurisdictional issue
for the first time on collateral review must show both
"cause" for his procedural default, and
"actual prejudice" resulting from the error.
Placente, 81 F.3d at 558.
§ 2255 motion, Clark asks this Court correct his
sentence, arguing he is eligible for relief under
Johnson. Mot. Vacate [#28] at 14-17. In particular,
Clark claims Johnson retroactively affects sentences
imposed under the USSG. Id. The Government
disagrees, claiming Clark's sentence was properly
calculated. Mot. Dismiss ...