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United States v. Loudd

United States District Court, S.D. Texas, Houston Division

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
HULON JAMES LOUDD, Defendant-Movant Civil Action No. H-16-1928

          MEMORANDUM AND RECOMMENDATION

          Frances H. Stacy United States Magistrate Judge

         Before 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), [1] 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.

         I. Procedural History

         Movant 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).

         On 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. 191).

         Loudd 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).

         On June 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).

         II. Discussion

         Loudd, 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.

         Federal 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 Beckles wrote:

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 ...

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