United States District Court, N.D. Oklahoma
UNITED STATES OF AMERICA. Plaintiff,
JOHNNE RAY SUAREZ, Defendant.
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE.
the Court is the motion by defendant, Johnne Ray Suarez, to
vacate, set aside, or correct sentence, filed under 28 U.S.C.
§ 2255 (Doc. 40). For the sole ground for relief, he
asserts that his “prior convictions are based on drugs
which do not qualify me under Johnson
provision.” (Id. at 7). Mr. Suarez is
referring to the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015).
The conviction and sentence
Suarez was charged on May 5, 2014 in a six count Superseding
Indictment, which asserted various drug trafficking and
weapons charges. (Doc. 12). On June 4, 2014, pursuant to a
plea agreement (Doc. 26), he pleaded guilty to Counts Four
and Six of the Superseding Indictment, for possession of a
firearm in furtherance of drug trafficking crimes under 18
U.S.C. § 924(c)(1)(A)(i) and possession of
methamphetamine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii).
(Id.; see also Doc. 34, 35). Pursuant to
the plea agreement, the government agreed to dismiss the
remaining counts, and Suarez waived his right to appeal his
conviction and to collaterally attack his conviction and
sentence, except for claims of ineffective assistance of
counsel which challenge the validity of the guilty plea or
the waiver. (Doc. 26 at 3). The presentence investigation
report indicated that Mr. Suarez's base offense level was
26 based on the quantity of drugs he possessed (PSR at ¶
17), and added two levels because he maintained premises for
the purpose of distributing controlled substances
(id. at ¶¶ 19, 23). Because Suarez had two
prior convictions for controlled substances offenses, he
qualified as a career offender, which raised his offense
level to 34. (Id. at ¶¶ 24, 30-31). After
application of a three-level reduction for acceptance of
responsibility, his offense level was 31, resulting in an
advisory guidelines range of 262 to 327 months. (Id.
at ¶¶ 28, 48).
sentencing, Mr. Suarez filed a motion for downward variance
to a guidelines range of 144 to 165 months, which was the
range that would have applied had he not received the career
offender enhancement. (See Doc. 32). This Court
granted that motion and sentenced him to a total term of 144
months, consisting of 60 months as to Count Four and 84
months as to Count Six, with Count Four to run consecutively
to Count Six. (Doc. 35 at 2). Judgment and Commitment was
entered on September 12, 2014. (Id.). Mr. Suarez did
Mr. Suarez's conviction and sentencing, the Supreme Court
decided Johnson on June 26, 2015, concluding that
the residual clause of the Armed Career Criminal Act (ACCA)
was unconstitutionally vague and violated the Fifth
Amendment's due process principles. 136 S.Ct. at 2556. On
April 18, 2016, the Supreme Court decided Welch v. United
States, 136 S.Ct. 1257 (2016) and determined that
Johnson announced a new substantive rule that could
be raised retroactively on collateral review. Such claims
were to be filed within one year of the decision in
Johnson. Mr. Suarez's motion was received and
docketed for filing on June 27, 2016, which was timely under
Fed.R.Civ.P. 6(a) (where deadline falls on a weekend or legal
holiday, the time runs until the next day that the courthouse
is open). See United States v. Hurst, 322 F.3d 1256,
1260 (10th Cir. 2003) (Rule 6(a) applies when calculating the
one-year statute of limitations under § 2255). In
addition, Suarez's motion would be timely filed, because
he is an inmate and he deposited his motion in the
institution's internal mailing system on or before the
last day for filing. (See Doc. 40). See
Rules Governing Section 2255 Proceedings, Rule 3(d).
government moved to dismiss Mr. Suarez's § 2255
motion. (Doc. 44). The Court provided Mr. Suarez time to
respond to the motion. (Doc. 45). Mr. Suarez never responded.
The § 2255 motion
noted, Mr. Suarez argues that he is entitled to relief under
§ 2255 because his “prior convictions are based on
drugs which do not qualify me under Johnson
provision.” (Doc. 40 at 7). In Johnson, the
Supreme Court held that the language of the “residual
clause” of the definition of “violent
felony” in 18 U.S.C. § 924(e)(2)(B)(ii) is
unconstitutionally vague, in violation of the Due Process
Clause of the Fifth Amendment. Johnson, 135 S.Ct. at
2556-57. As a result, the Supreme Court held that the
residual clause may not be used for a sentence enhancement
under the ACCA. Id.
Suarez has not presented a Johnson claim. The
residual clause of § 924(e)(2)(B)(ii) was utilized
within the definition of “violent felony.” Mr.
Suarez was not sentenced under the residual clause of the
violent felony definition of the ACCA. Instead, the PSR
indicated that he was considered a career offender because he
had two prior convictions for controlled substances offenses.
(PSR at ¶ 24). In addition, his charge under 18 U.S.C.
§ 924(c)(1)(A)(i) did not involve §
924(c)(1)(3)'s definition of “crime of violence,
” but was for possession of a firearm in furtherance of
drug trafficking crimes under 18 U.S.C. §
924(c)(1)(A)(i). His conviction and career offender
predicates were convictions for controlled substance
offenses, not crimes of violence. He accordingly has no claim
under Johnson. Any other claims are subject to the
collateral review waiver in his Plea Agreement. (See
Doc. 26 at 3, ¶ 3(d)).
foregoing reasons, the government's motion to dismiss
(Doc. 44) is granted, and Mr. Suarez's § 2255 motion
to vacate, set aside, or correct sentence (Doc. 40) is
dismissed. In the alternative, the Court finds and ...