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Memorandum Opinion (Denying 28 U.S.C. § 2255 Motion) — Criminal No. 3:09CR68-HEH (Dkt. 41, E.D. Va.)

Summary

Judge Henry E. Hudson of the Eastern District of Virginia, Richmond Division, denied a federal inmate's pro se motion under 28 U.S.C. § 2255 in Criminal No. 3:09CR68-HEH. The petitioner argued that, after the Supreme Court's 2015 decision in Johnson v. United States, the enhanced career-offender sentence under the U.S. Sentencing Guidelines was unconstitutional. The memorandum opinion quotes United States v. Lee, 855 F.3d 244 (4th Cir. 2017), for the point that the Guidelines are not subject to a vagueness challenge and that Johnson's holding does not apply to the residual clause in USSG § 4B1.2(a)(2). Finding the claim without merit, the court granted the Government's Motion to Dismiss (ECF No. 39), denied the § 2255 Motion (ECF No. 34), dismissed the action and denied a certificate of appealability.

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                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE EASTERN DISTRICT OF VIRGINIA
                                     Richmond Division


UNITED STATES OF AMERICA


V.                                                    Criminal No. 3:09CR68-HEH


BAQIKHABIR,

         Petitioner.


                               MEMORANDUM OPINION
                            (Denying 28 U.S.C. § 2255 Motion)

         Petitioner, a federal inmate proceeding pro se, submitted this motion under 28

U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner asserted that, in

light of the Supreme Court's recent decision in Johnson v. United States, 135 S. Ct. 2551

(2015), his enhanced sentence under the United States Sentencing Guidelines ("USSG")

as a career offender is unconstitutional.^ "Recently, the Supreme Court concluded that

the Guidelines are not subject to a vagueness challenge under the Due Process

Clause        Johnson's vagueness holding does not apply to the residual clause in [USSG]

§ 4B1.2(a)(2)." United States v. Lee, 855 F.3d 244, 246^7 (4th Cir. 2017) (citation omitted).

         ^As the Supreme Court has noted,
       [u]nder the Armed Career Criminal Act ["ACCA"] of 1984, a defendant
       convicted of being a felon in possession of a firearm faces more severe
       punishment if he has three or more previous convictions for a "violent felony," a
       term defined to include any felony that ^'involves conduct that presents a serious
       potential risk ofphysical injury to another.'''

Johnson, 135 S. Ct. at 2555 (emphasis added) (quoting 18 U.S.C. § 924(e)(2)(B)). This part of
the definition of violent felony "ha[s] come to be known as the Act's residual clause." Id. at
2556. The Johnson Court held "that imposing an increased sentence under the residual clause of
the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563.
Thus, Petitioner's claim lacks merit. Accordingly, the Government's Motion to

Dismiss (ECF No. 39) will be granted. The § 2255 Motion (ECF No. 34) will be denied.

The action will be dismissed, and the Court will deny a certificate of appealability.

       An appropriate Order shall issue.




                                                                /s/
                                           HENRY E.HUDSON
                                           UNITED STATES DISTRICT JUDGE


Date:Tv«i«.
Richmond, Virgmia


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