United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
Frances H. Stacy United States Magistrate Judge
the Magistrate Judge in this federal habeas corpus proceeding
pursuant to 28 U.S.C. §2255 is Movant Hulon James
Loudd's §2255 Motion to Vacate, Set Aside or Correct
Sentence (Document No. 207),  and the United States'
Response (Document No. 213). After reviewing the parties'
submissions, the record of the proceedings before the
District Court in the underlying criminal case and on appeal,
and the applicable case law, the Magistrate Judge RECOMMENDS,
for the reasons set forth below, that Movant's §2255
Motion to Vacate, Set Aside or Correct Sentence (Document No.
207) be DENIED.
Hulon James Loudd (“Loudd”), who is currently in
the custody of the United States Bureau of Prisons, is
seeking federal habeas corpus relief under 28 U.S.C.
§2255. This is Loudd's second attempt at §2255
relief. The Fifth Circuit Court of Appeals authorized the
filing of a successive motion. (Document No. 208).
September 28, 2006, Loudd was charged by Indictment with
unlawful possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
924(e). (Document No. 1). The Indictment states in pertinent
part that Loudd had sustained “three previous
convictions for a violent felony, serious drug offense, or
both, committed on occasions different from each
other.” (Document No. 1). A jury convicted Loudd on
July 25, 2007. (Document No. 133). Prior to sentencing, a
pre-sentence investigation report (“PSR”).
(Document No. 144). Loudd filed written objections. (Document
Nos. 142, 148). The PSR assigned Loudd a base offense level
of 33 under U.S.S.G. § 4B1.4(b)(3)(B). With an offense
level of 33, and a criminal history category of VI, Loudd had
an advisory guideline sentencing range of 235 to 293 months.
On December 14, 2007, Loudd was sentenced to a term of
imprisonment of 235 months, to be followed by a 5 year term
of supervised release. (Document No. 151, Transcript of
Sentencing Hearing, Document No. 183, pp. 21-26). Judgment
was entered on December 20, 2007. (Document No. 157). Loudd
appealed his conviction to the Fifth Circuit Court of
Appeals. (Document No. 159). Unpersuaded by Loudd's
arguments, the Fifth Circuit affirmed Loudd's conviction
and sentence on January 20, 2009. (Document No. 188, 189). On
May 26, 2009, the United States Supreme Court denied
Loudd's Petition for Writ of Certiorari. (Document No.
timely filed a § 2255 Motion to Vacate, Set Aside, or
Correct Sentence (Document No. 197). Loudd raised a claim of
ineffective assistance of appeallate counsel. On June 17,
2011, the undersigned Magistrate Judge entered a Memorandum
and Recommendation, which recommended that Loudd's §
2255 Motion be denied because his ineffective assistance of
appellate counsel claim was without merit. (Document No.
202). In an Order entered on September 20, 2012, Judge Harmon
adopted the Memorandum and Recommendation and denied
Loudd's § 2255 Motion. (Document No. 206).
27, 2016, Loudd filed the instant § 2255 Motion.
(Document No. 207). On July 29, 2016, the Fifth Circuit Court
of Appeals granted Loudd authorization to file a successive
§ 2255 Motion. (Document No. 208).
relying on the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States, 136 S.Ct. 1257 (2016), argues that he is
no longer an armed career criminal and that is conviction
unconstitutional. Loudd argues that this three prior
convictions no longer qualify as violent felonies under the
ACCA. The Government responds that Loudd's three prior
convictions for aggravated robbery law did not fall under the
residual clause of the ACCA, which the Supreme Court struck
down in Johnson as unconstitutionally vague. The
Government argues that Loudd's three 1991 Texas
convictions for aggravated robbery qualified as violent
felonies under the ACCA because each had as an element the
use, attempted use, or threatened use of force against
another person. The Government has moved to dismiss
Loudd's Johnson claim because the Supreme
Court's decision in Johnson does not affect
Loudd's sentence. The Magistrate Judge agrees.
law prohibits felons from possessing firearms. See
18 U.S.C. § 922(g)(1). This offense is generally
punishable by up to 10 years' imprisonment, see
18 U.S.C. § 924(a)(2), but under that Armed Career
Criminal Act (“ACCA” or “Act”), a
felon in possession of a firearm who has three previous
convictions for violent felonies or serious drug offenses
may be imprisoned for life, and must be
imprisoned for 15 years, see 18 U.S.C. §
924(e). 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 or 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). The
last part of the definition, “otherwise involves
conduct that presents a serous potential risk of physical
injury to another” has been known as the residual
clause. Johnson, 135 S.Ct. at 2556. In
Johnson, the Supreme Court determined that the
definition of “violent felony” under the residual
clause of the ACCA is unconstitutionally vague and that
imposing an increased sentence under the residual clause of
the ACCA violates a defendant's right to due process. The
holding in Johnson applies only to the residual
clause definition of “violent felony. The Supreme Court
made clear that its decision “does not call into
question application of the Act to the four enumerated
offenses, or the remainder of the Act's definition of
violent felony.” Id. at 2563. On April 18,
2016, the Supreme Court held that Johnson applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257, 1260-68 (2016). Since
them, various other provisions of 18 U.S.C. § 924,
including § 924(c), and provisions of the United States
Sentencing Guidelines, have been challenged on the same due
process grounds as that in issue in Johnson. While
the Supreme Court has yet to address the due process
challenges to like-worded statutory provisions, in
Beckles v. United States, __ S.Ct. __, 2017 WL
855781 at *6 (U.S. Mar. 6, 2017), the Supreme Court held that
the type of due process, void for vagueness challenges at
issue in Johnson could not be made to like-worded
provisions of the Sentencing Guidelines. The Court in
This Court has held that the Due Process Clause prohibits the
Government from “taking away someone's life,
liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary
enforcement.” Johnson, 576 U.S., at __ __, 135
S.Ct., at 2556 (citing Kolender v. Lawson, 461 U.S.
352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).
Applying this standard, the Court has invalidated two kinds
of criminal laws as “void for vagueness”: laws
that define criminal offenses and laws that fix
the permissible sentences for criminal offenses.
Id., at 357, 103 S.Ct. 1855. For the latter, the
Court has explained that “statutes fixing sentences,
” Johnson, supra, at __, 135 S.Ct., at 2557
(citing United States v. Batchelder, 442 U.S. 114,
123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)), must specify the
range of available sentences with “sufficient clarity,
” id., at 123, 99 S.Ct. 2198; see also
United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92
L.Ed. 823 (1948); cf. Giaccio v. Pennsylvania, 382
U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
In Johnson, we applied the vagueness rule to a
statute fixing permissible sentences. The ACCA's residual
clause, where applicable, required sentencing courts to
increase a defendant's prison term from a statutory
maximum of 10 years to a minimum of 15 years. That
requirement thus fixed-in an impermissibly vague way-a higher
range of sentences for certain defendants. See Alleyne v.
United States, 570 U.S. __, __, 133 S.Ct. 2151,
2160-2161, 186 L.Ed.2d 314 (2013) (describing the legally
prescribed range of available sentences as the penalty fixed
to a crime).
Unlike the ACCA, however, 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.
Accordingly, the Guidelines are not subject to a vagueness
challenge under the Due Process ...