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Jordan v. United States

United States District Court, W.D. Texas, Austin Division

September 16, 2019

MONTY RAY JORDAN
v.
UNITED STATES OF AMERICA

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE JAMES R. NOWLIN SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court are Monty Ray Jordan's Motion to Vacate Under 28 U.S.C. § 2255 (Dkt. No. 27); Jordan's Memorandum of Law in Support (Dkt. No. 34); and the Government's Response (Dkt. No. 36). The undersigned submits this Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Court's Local Rules.

         I. GENERAL BACKGROUND

         On April 4, 2000, Monty Ray Jordan, pursuant to a plea agreement, pled guilty to a three-count superseding information charging him with bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Count 1); using or carrying a firearm during commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count 2); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 3). The Court sentenced him to 188 months imprisonment on Counts 1 and 3, to run concurrently, and to 84 months imprisonment on Count 2, consecutive to the 188 months, for a total sentence of 272 months of imprisonment. Dkt. No. 21. The Court also imposed a five-year term of supervised release on all three Counts concurrently. Id. Jordan did not file a direct appeal, but has now filed this Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255, seeking a reduction of his sentence under Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015), which the Supreme Court has made retroactively applicable to cases on collateral review, Welch v. United States, __U.S.__, 136 S.Ct. 1257 (2016).

         Jordan originally filed his motion in 2016, shortly after the Court entered a standing order appointing the Federal Public Defender to represent all defendants previously sentenced by the Court who were, or were potentially affected by, the Johnson decision. In January 2017, Jordan moved for a stay of the case until the Supreme Court decided Beckles v. United States and Sessions v. Dimaya. Dkt. No. 28. That motion was granted, and the briefing schedule was suspended. Dkt. No. 29. In June 2018, the stay was lifted, and a new briefing schedule was entered, which was extended multiple times at Jordan's request, and once at the government's request. Ultimately, Jordan filed his brief on November 11, 2018, and the government filed its response on May 24, 2019. On July 19, 2019, Jordan completed the custodial portion of his sentence, and was released from the Bureau of Prisons.[1]

         As mentioned, Jordan pled guilty to three offenses. In addition, his criminal history triggered application of one statutory sentencing enhancement, and two Sentencing Guideline enhancements. One of the offenses also called for the imposition of a mandatory minimum, consecutive sentence. More specifically, Jordan's felon in possession charge in Count 3 was enhanced pursuant to the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)), based on his prior convictions for dispensing marijuana, burglary, jail escape and aggravated robbery with a deadly weapon. This meant that instead of facing a sentence of zero to ten years of imprisonment, his sentencing range for Count 3 increased to 15 years to life. PSR at ¶ 51. Jordan claims that none of his prior convictions qualified under either the “enumerated offenses” or “elements” clauses of the ACCA, and could only have qualified under the “residual clause” of § 924(e)(2)(B)(ii). Jordan argues that application of the enhancement to him violated his Due Process rights, because Johnson retroactively struck the residual clause as unconstitutionally vague. He contends he therefore is entitled to relief under Johnson, Welch and 28 U.S.C. § 2255(f)(3).

         If that were the sole issue, this case would be easy. Unfortunately it's not. The fact that Jordan pled guilty to two other offenses makes determining whether Jordan is entitled to any relief under Johnson quite complicated. Jordan's other two convictions were for bank robbery, and using a firearm in committing that bank robbery. Bank robbery is a “crime of violence” under the Career Offender guideline found in § 4B1.1 of the relevant Sentencing Guidelines.[2] Under that guideline, if a defendant has been convicted of a crime of violence, and has at least two prior felony convictions for crimes of violence or controlled substance offenses, his base offense level is to be increased, with the increase keyed off of the statutory maximum sentence for the underlying offense. In the Presentence Report, the Probation Office concluded that the Career Offender guideline applied to Jordan, as the bank robbery offense was a crime of violence, and Jordan had two qualifying prior convictions: jail escape, and aggravated robbery.[3] PSR at ¶ 23. Because the maximum sentence for the bank robbery offense was 25 years, the base offense level for the bank robbery charge was increased to 34. Id.

         Another complicating factor is that the Probation Office also concluded that the Armed Career Criminal guideline found in U.S.S.G. § 4B1.4 (as opposed to the Armed Career Criminal Act contained in 18 U.S.C. § 924(e)) applied to the felon in possession charge. Under this guideline, if a defendant meets the conditions of § 924(e), he is an “armed career criminal, ” and the base offense level for the underlying felon in possession charge is increased. In Jordan's case the offense level for the felon in possession charge increased to 34, as he possessed the firearm in connection with a crime of violence-bank robbery. See U.S.S.G. § 4B1.4(b)(3)(A); PSR at ¶¶ 23, 24. Thus, the Probation Office determined that under the Career Offender guideline in § 4B1.1, Jordan's base offense level for the bank robbery charge was 34, and under the Armed Career Criminal guideline of § 4B1.4, the base offense level for the felon in possession charge was also 34. The Probation Office therefore recommended that the base offense level for both charges, which were grouped for the guidelines calculation, should be 34. Id. Further, under each of these guideline enhancements, Jordan's criminal history category automatically increased to VI (it otherwise would have been III). Adjusting the offense level downward three levels for acceptance of responsibility, the Probation Office calculated that on Counts 1 and 3 Jordan had an offense level of 31 and criminal history category of VI, and thus a sentencing guideline range of 188-235 months. The sentencing judge imposed a sentence at the low end of the range-188 months-on both Counts 1 and 3, and ordered that the sentences run concurrently.

         Finally, Count 2-using a firearm during the commission of a crime of violence-carried a mandatory consecutive sentence (in Jordan's case, a minimum of seven years as he brandished the firearm during the bank robbery). Because of the mandatory consecutive nature of the sentence, the guidelines were inapplicable to this charge. This meant that the sentencing judge was required to add 84 months to whatever sentence he imposed on Counts 1 and 3. Accordingly, the Court imposed an 84-month sentence on Count 2, and ordered that it run consecutively to the 188-month sentence for Counts 1 and 3, for a total sentence of 272 months of imprisonment. Dkt. No. 21 at 2. The Court also imposed five years of supervised release on all three counts, concurrently. Id. at 3.

         In this petition, Jordan argues first that the enhancement of his sentence for the felon in possession charge under § 924(e) raises a pure Johnson claim, as the only way he could have had enough qualifying prior convictions was through application of the residual clause of § 923(e)(2)(B)(ii), and that clause was held to be unconstitutional in Johnson. The Government does not address this directly in its briefing, and the Court assumes from its silence that there is not any dispute on this limited point. Jordan also contends that his prior convictions for burglary, jail escape, and aggravated robbery with a deadly weapon could only be considered “crimes of violence” under the Career Offender guideline if the very same “residual clause” language struck down in Johnson, and contained in the relevant guideline definitions, is applied. He asserts that under Johnson the residual clause language in the Career Offender guideline is also unconstitutionally vague, and he is entitled to be resentenced without the Career Offender guideline being applied. He further argues that the Supreme Court's decision in Beckles (in which the Court upheld application of the Career Offender guideline when applied under the post- Booker guideline regime) does not bar his claim, as he was sentenced prior to Booker, when the guidelines were mandatory and had the force of law. The Government responds that Jordan's argument attacking application of the guideline enhancements is untimely, and that even if the Court were to resentence Jordan, the 188-month sentence imposed on Count 1 (the bank robbery count) was fair and reasonable, and remains the appropriate sentence.

         II. ANALYSIS

         Jordan brings this motion challenging his sentence pursuant to Johnson. Under federal law a movant under § 2255 generally must file his claim for relief within one year of the date his conviction becomes final, unless one of the exceptions contained in § 2255 applies. 28 U.S.C. § 2255(f). For his timeliness argument, Johnson relies on the exception to the limitation period set out in subsection (f)(3), which states that the limitations period does not start to run until “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.” 28 U.S.C. § 2255(f)(3). Jordan argues that his claims fall within (f)(3), as his claim for relief is based on the newly recognized right announced in Johnson, that decision was made retroactively applicable to cases on collateral review, and his motion was filed within one year of the Johnson decision. The Government, however, argues that Jordan's motion is untimely because his claim does not, and could not, stem from any right recognized in Johnson.

         As already noted, part of Jordan's claim is a “classic” Johnson claim. His sentencing range for Count 3 was enhanced under the ACCA, from zero to ten years, to 15 years to life, and the supervised release range was increased from zero to three years, to three to five years. The sentence imposed was in fact an enhanced sentence-on Count 3 he received 188 months (15 years and 8 months) and five years of supervised release. If the enhancement was based on one or more convictions that only qualified under the portion of § 924(e) struck down by Johnson, then ...


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