United States District Court, E.D. Oklahoma
HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE
28, 2009, Defendant Giovanni Martinez (hereinafter
“Defendant”) pleaded guilty to Counts One and
Three of the Indictment, more particularly described as
follows: Count One: Possession with Intent to Distribute
Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and Count Three: Felon in Possession of a
Firearm, in violation of 18 U.S.C. § 922(g)(1). Within
the plea agreement, Defendant also waived certain appellate
and post-conviction rights. On February 10, 2010, the Court
found Defendant was a Career Offender and sentenced him to
188 months on Count One, and 120 months on Count Three, to be
served concurrently in the custody of the Bureau of
Prisons. The Judgment was entered on February 16,
before the Court is Defendant's second or successive
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 [Doc. No. 1]. Pursuant to the prison
mailbox rule, the filing date of this authorized § 2255
motion is June 21, 2016, the date the motion for
authorization was delivered to prison authorities for
mailing. The Tenth Circuit Court of Appeals granted
authorization for Defendant to file this second or successive
§ 2255 motion in district court based upon Johnson
v. United States, 135 S.Ct. 2551 (2015). See, Order filed
July 22, 2016 in CR-09-30-RAW [Doc. No. 87]. In summary,
Defendant is claiming that he is no longer a Career Offender
in light of Johnson, and that he is therefore
entitled to sentencing relief.
Johnson, the Supreme Court held that the residual
clause of the “violent felony” definition within
the Armed Career Criminal Act is unconstitutionally vague.
See generally Johnson, 135 S.Ct. 2551. In this case,
however, Defendant was not sentenced as an Armed Career
Criminal under the ACCA's residual clause. Rather, as
noted in the Presentence Report (“PSR”),
Defendant was sentenced as a Career Offender, having at least
two prior qualifying offenses under § 4B1.1 of the
United States Sentencing Guidelines. Defendant has a felony
conviction of a controlled substance offense,
Intent”, Circuit Court, Dade County, Florida, Case No.
F-01-14231, and a felony conviction of a crime of violence,
“Armed Robbery” and “Armed Occupied
Burglary (Vehicle)”, Circuit Court, Dade County,
Florida, Case No. F-01-28249(A). [PSR, ¶¶ 29, 47
August 11, 2016, the Government filed a motion herein,
requesting this Court to stay Defendant's § 2255
motion pending the Supreme Court's resolution of
Beckles v. United States, No. 15-8544, 136 S.Ct.
2510, 2016 WL 1029080 (June 27, 2016) (order granting
certiorari). [Doc. No. 3]. In its motion to stay, the
Government provided a summary of issues to be resolved by
Beckles, along with a response to the Career
Offender argument urged by Defendant herein [Id. at
1-2]. The Government claimed this Defendant, in order to
prevail, “must establish, among other things, that
Johnson's constitutional holding applies to the
residual clause definition of a “crime of
violence” in U.S.S.G. § 4B1.2's Career
Offender Guideline and that it does so retroactively on
collateral review.” [Id.]. This Court
recognized Beckles would likely control the result
in this matter, and on November 3, 2016, the Government's
unopposed motion to stay was granted [Doc. No. 4 at 3].
March 6, 2017, the Supreme Court issued its opinion in
Beckles v. United States, __ U.S.__, 137 S.Ct. 886
(2017), concluding that the U.S. Sentencing Guidelines are
not subject to a vagueness challenge under the Due Process
Clause. Id. at 892. Of particular importance herein,
the Beckles Court decided that the vagueness holding
in the Johnson case does not apply to the Career
Offender provisions of the Sentencing Guidelines.
Id. In the case at hand, the record clearly
establishes this Defendant was sentenced as a Career Offender
under § 4B1.2 of the Sentencing Guidelines. The
Beckles decision therefore controls the outcome
here, meaning Johnson does not apply and this
Defendant is not entitled to sentencing relief
the stay previously imposed on November 3, 2016, is hereby
vacated, and the Defendant's second or successive motion
to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 is hereby DENIED. Furthermore, Defendant has
not made a substantial showing of a denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). Therefore,
pursuant to Rule 11(a) of the Rules Governing Section 2255
Proceedings, this Court hereby declines to issue a
certificate of appealability.
 At the sentencing, in accordance with
the plea agreement, the Government dismissed Count Two,
Possession of a Firearm in Furtherance of a Drug Trafficking
Crime, in violation of 18 U.S.C. § 924(c)(1)(A).
 Pursuant to 28 U.S.C. §
2255(f)(3), Defendant's motion would be timely if
Johnson applies herein, because it was filed within
one year of the Johnson decision, which announced a
new substantive rule of constitutional law. Johnson
was decided by the Supreme Court on June 26, 2015.
 The Beckles case mentioned
herein had not been decided at the time the Tenth Circuit
granted authorization to file this second or successive
§ 2255 motion.
See also, United States v.
Ramos, No. 16-5128, Fed.Appx., 2017 WL 894428 (10th Cir.
March 7, 2017) ...