United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the motion of the United States
requesting that the Court enter an order again holding this
action in abeyance. [CV Doc. 7].
was found guilty of robbery and use of a firearm during and
in relation to a robbery, in violation of 18 U.S.C. §
2113(a) and 18 U.S.C. § 924(e)(1); theft, in violation
of 18 U.S.C. § 2113(b); and assault and putting in
jeopardy the lives of the tellers while committing robbery,
in violation of 18 U.S.C. § 2113(d). [CR Doc. 1 at 6].
The presentence report noted that Petitioner had at least two
prior qualifying convictions that triggered the Career
Offender enhancement under section 4B1.2 of the Sentencing
Guidelines: (1) a 1974 South Carolina conviction for
housebreaking and larceny and (2) a 1977 South Carolina
conviction for housebreaking and larceny (two cases counted
as a single predicate). The Court sentenced Petitioner as a
Career Offender to a term of imprisonment of 387 months.
10, 2016, Petitioner commenced this action by filing a
petition pursuant to 28 U.S.C. § 2255, and he filed a
Supplemental Motion to Vacate through counsel on July 13,
2016. [CV Docs. 1; 3]. In his petition, Petitioner contends
that, in light of Johnson v. United States, 135
S.Ct. 2551 (2015), his prior convictions under South Carolina
law for housebreaking and larceny no longer qualify as
“crimes of violence” under the Guidelines. [CV
Doc. 3 at 3-4]. Consequently, Petitioner argues his Career
Offender designation is improper and thus his sentence is
response to the petition, the government filed a motion to
hold this proceeding in abeyance pending the Supreme
Court's decision in Beckles v. United States,
616 Fed.Appx. 415 (11th Cir.), cert. granted, 2016
WL 1029080 (U.S. June 27, 2016) (No. 15-8544). [CV Doc. 4].
One of the questions presented in Beckles was
whether Johnson applies retroactively to cases
collaterally challenging federal sentences enhanced under the
residual clause in U.S.S.G. § 4B1.2(a)(2). The residual
clause invalidated in Johnson is identical to the
residual clause in the Career Offender provision of the
Guidelines, § 4B1.2(a)(2) (defining "crime of
violence"). This Court granted the government's
motion and held this matter in abeyance pending the
Beckles decision. The government was granted sixty
(60) days after the Beckles decision to file a
response to Petitioner's motion to vacate. [CV Doc. 5].
March 6, 2017, the Supreme Court issued its decision in
Beckles, holding that “the advisory
[Sentencing] Guidelines are not subject to vagueness
challenges under the Due Process Clause” and that
Johnson, therefore, does not apply to invalidate the
residual clause of the career-offender Guideline. 137 S.Ct.
886, 890, 895 (2017). In the wake of Beckles,
Petitioner filed a supplemental brief in support of his
motion to vacate, in which he argues that Beckles
does not resolve his claim for relief because he was
sentenced when the Sentencing Guidelines were mandatory,
rather than advisory. [CV Doc. 6 at 1].
government contends that the Fourth Circuit will soon hear
oral argument in United States v. Brown, No. 16-7056
(4th Cir.), in which the defendant has argued that his
career-offender sentence should be vacated under
Johnson because he was classified as a career
offender based on the residual clause of the career-offender
guideline when the Guidelines were mandatory. The government
argues that the Fourth Circuit's decision in
Brown may be dispositive of Petitioner's claim
for relief under Johnson. Even if not dispositive of
Petitioner's entire claim, the government argues, the
Brown decision will be dispositive of certain of the
legal issues posed by Petitioner's motion to vacate.
upon the reasons given by the government, and without
objection by Petitioner, the Court concludes that the
government's motion should be granted.
THEREFORE, ORDERED that the government's motion to place
this case in abeyance [CV Doc. 7], is hereby GRANTED and this
matter is hereby held in abeyance pending the Fourth
Circuit's decision in United States v. Brown,
No. 16-7056 (4th Cir.). Thereafter, the government shall have
45 days from the date the Fourth Circuit decides
Brown within which to file its response in this
 Citations to the record herein contain
the relevant document number referenced preceded by either
the letters “CV” denoting the document is listed
on the docket in the civil case file number 1:16-cv-00162-MR,
or the letters “CR” denoting the document is
listed on ...