United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE REPORT AND RECOMMENDATION
JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE
the court is the Petitioner's Motion to Vacate, Set
Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section
2255 (Doc. 45) filed June 11, 2018. The United States of
America filed a Response (Doc. 48) on July 10, 2018 and the
matter is ready for Report and Recommendation.
September 9, 2010, a criminal complaint was filed against
Nicholas Gray (“Gray”) alleging two counts of
distributing cocaine base. (Doc.1). Thereafter, Gray was
named in a two-count Indictment filed in the Western District
of Arkansas, Fayetteville Division, on September 15, 2010.
(Doc.2). Counts One and Two charged Gray with distributing
December 7, 2010, Gray appeared with his attorney before the
Honorable Jimm Larry Hendren for a change of plea hearing.
(Doc. 18). The Court was presented with a written plea
agreement whereby Gray to enter a plea of guilty to Count One
of the Indictment. (Doc. 19).
Presentence Investigation Report (“PSR”) was
issued on March 11, 2011. (Doc. 23). The PSR recommended a
base offense level of 36 on finding Gray to be accountable
for 18.2 grams of cocaine base. (PSR, ¶ 27). After
receiving a 3-point reduction for acceptance of 1
responsibility, Gray's final offense level was 21. (PSR,
¶¶ 33 - 35). However, Gray was found to be a career
offender for having prior Arkansas residential burglary and
accomplice to manslaughter convictions, which resulted in an
adjusted offense level of 32. (PSR, ¶ 36). With the
3-point adjustment for acceptance of responsibility,
Gray's new total offense level was set at 29. (PSR,
¶¶ 37 - 39). Gray's statutory range called for
a maximum term of imprisonment of 20 years. (PSR, ¶ 72).
His advisory guidelines range was 151 to 188 months. (PSR,
sentencing hearing was held on March 11, 2011, whereat, the
Court granted the United States' 5K1.1 motion and
sentenced him to 140 months imprisonment, 3 years supervised
release, a $12, 500 fine, and a $100 special assessment.
(Docs. 25 and 26).
September 22, 2015, Gray, through counsel Bruce Eddy, filed
an Unopposed Motion to Reduce Sentence Pursuant to Amendment
788 and 18 U.S.C. § 3582(c)(2). (Doc. 28). The Court
denied Gray's motion based in part on him being found to
be a career offender. (Docs. 30 and 31).
16, 2016, Gray, through counsel Bruce Eddy, filed a Motion
For Relief Under 28 U.S.C. § 2255 based on the
application of Johnson v. United States, 135 S.Ct.
2551 (2015). (Doc. 37). The Court, thereafter, stayed the
motion pending the Supreme Court's ruling in Beckles
v. United States. (Doc. 40). After the Beckles
decision, Gray filed a Notice of Dismissal of the § 2255
Motion on April 26, 2017. (Doc. 41). A clerk's order was
entered the next day dismissing the motion. (Doc. 42).
11, 2018, Gray filed the instant Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody requesting relief based on the
recent Supreme Court decision in Sessions v. Dimaya,
138 S.Ct. 1204 (2018).
Sessions v. Dimaya
Petitioner contends that he was improperly classified as a
career offender because his convictions for burglary and
manslaughter should not have been considered violent offenses
pursuant to Sessions v. Dimaya. (Doc. 45, p. 4)
26, 2015, the Supreme Court held in Johnson that the
“residual” clause of the Armed Career Criminal
Act (“ACCA”) was unconstitutionally vague.
Johnson, 135 S.Ct. at 2563. The Act defined
“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 of 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.” § 924(e)(2)(B)
(emphasis added). The emphasized text is referred to as the
residual clause and it is this clause that ...