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Jones v. United States

United States District Court, W.D. Arkansas, El Dorado Division

April 4, 2018

KENNETH J. JONES PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is the Report and Recommendation filed on June 23, 2017, by the Honorable Barry A. Bryant, United States Magistrate Judge for the United States District Court for the Western District of Arkansas. ECF No. 44. Petitioner has filed timely objections. ECF No. 45. The Court finds this matter ripe for consideration.

         BACKGROUND

         On May 31, 2016, Petitioner filed a Motion for Relief under 28 U.S.C. § 2255. ECF No. 36. Petitioner states that he was sentenced in the underlying criminal action to an enhanced sentence under the Armed Career Criminal Act (“ACCA”). However, Petitioner now claims that his conviction for unauthorized entry of an inhabited dwelling under La. Stat. Ann § 14:62.3 no longer qualifies as a predicate offense in light of the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause of the ACCA is unconstitutionally vague. In response, the Government concedes that Petitioner's conviction for unauthorized entry of an inhabited dwelling no longer constitutes a predicate offense for purposes of the ACCA. However, the Government argues that Petitioner is still subject to the enhanced ACCA sentence because Petitioner's 2002 conviction for possession of drug paraphernalia with intent to manufacture methamphetamine qualifies as a “serious drug offense” as contemplated by the ACCA. In his reply, Petitioner argues that “the Government cannot offer a new predicate conviction in support of an enhanced ACCA sentence which it failed to rely on as a possible predicate felony at sentencing.” ECF No. 43, p. 1. Petitioner further argues that regardless, a conviction for possession of drug paraphernalia with intent to manufacture methamphetamine does not constitute a “serious drug offense” under the ACCA.

         Upon consideration, Judge Bryant found Petitioner's arguments unpersuasive. Judge Bryant noted that the Court did not delineate which of Petitioner's prior convictions qualified as predicate offenses under the ACCA. Judge Bryant further found that Petitioner's conviction for possession of drug paraphernalia with intent to manufacture methamphetamine qualified as a “serious drug offense.” Accordingly, Judge Bryant concluded that Petitioner's Motion for Relief under 28 U.S.C. § 2255 should be denied. In his objections, Petitioner argues that Judge Bryant erred (1) in finding that the Court may rely on a previously unnamed drug offense to now support an ACCA enhancement and (2) in finding that possession of drug paraphernalia with intent to manufacture methamphetamine qualifies as a “serious drug offense.”

         DISCUSSION

         The Court will address each of Petitioner's objections in turn.

         I. Whether Petitioner's Conviction for Possession of Drug Paraphernalia with Intent to Manufacture Methamphetamine May be Used as a Predicate Offense

         Petitioner takes the position that the Court did not consider his conviction for possession of drug paraphernalia with intent to manufacture methamphetamine when it determined that he was subject to an enhanced ACCA sentence. Petitioner states that the PSR “listed his convictions for possession of methamphetamine with intent to deliver, unauthorized entry into an inhabited dwelling, and conspiracy to operate a clandestine laboratory for the manufacture of methamphetamine as qualifying predicates for the [ACCA] enhancement.” ECF No. 45, p. 1 (citing ECF No. 26, ¶ 17). With this argument in mind, Petitioner asserts that “a new predicate conviction cannot now be offered in support of an enhanced ACCA sentence that the Government failed to rely upon as a possible predicate felony at sentencing.” ECF No. 45, pp. 3-4.

         Upon consideration, the Court finds Petitioner's arguments unpersuasive. Petitioner is correct in noting that the PSR listed only three of Petitioner's previous convictions when the probation officer noted that Petitioner was subject to an enhanced sentence under the ACCA. However, there is no indication that the Court only considered these three offenses in determining that Petitioner was an armed career offender. At the sentencing hearing, the Court simply stated: “Well, the probation office provided numerous certified judgments from Lafayette County criminal records and from other courts in Louisiana which shows that you have and are properly characterized as an Armed Career Offender.” ECF No. 42, p. 10.

         Likewise, even if the Court had not considered Petitioner's conviction for possession of paraphernalia with intent to manufacture methamphetamine when the Court concluded that Petitioner was subject to the ACCA enhanced sentence, Petitioner fails to cite to any binding precedent that would bar the government from offering evidence of another predicate conviction or, in turn, bar the Court from now considering that conviction. Although Petitioner does cite two non-binding Eleventh Circuit decisions in support of his argument, those cases are distinguishable.

         In Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013) (reversed on other grounds McCarthan v. Dir. of Goodwill Indus., 851 F.3d 1076, 1080 (11th Cir. 2017)), the Eleventh Circuit found that the petitioner had shown that his concealed-firearm conviction under Florida law was not a “violent felony.” Bryant, 738 F.3d at 1278-79. The Bryant court noted the Government's contention that a separate conviction-burglary-could be used as a third predicate offense in place of the concealed-firearm conviction. However, the court found that the government had “waived this burglary issue at the initial sentencing[, ]” stating:

At sentencing, the district court found that Bryant had at most three qualifying predicate convictions, which were the concealed-firearm conviction and the two drug convictions listed in the indictment. The government never objected to that finding by the district court. Despite repeated opportunities to do so at sentencing, the government also never suggested at any point that Bryant's 1988 burglary conviction could serve as a ยง 924(e)-qualifying felony. At no time during Bryant's direct criminal proceedings did the government ever rely on the burglary ...

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