United States v. Derring
3:11-cr-00179
W.D.N.C.Sep 18, 2017Background
- Derring was convicted by a jury of being a felon in possession of a firearm/ammunition and sentenced to 92 months imprisonment based on a Guidelines base offense level enhanced under U.S.S.G. § 2K2.1(a)(4) due to two prior Ohio convictions (felonious assault with a firearm and robbery).
- The PSR applied base offense level 24 and criminal history category V, yielding a 92–115 month guideline range; the court sentenced at the bottom of that range.
- Derring’s direct appeal challenged sufficiency of evidence; the Fourth Circuit affirmed. A prior pro se § 2255 was denied and appeals dismissed.
- The Fourth Circuit authorized a successive § 2255 to raise a Johnson claim; Derring filed a counseled § 2255 arguing his Ohio felonious assault conviction is not a “crime of violence” after Johnson, so the § 2K2.1 enhancement is invalid.
- The government moved to stay pending Beckles; after Beckles was decided, the court concluded Johnson’s vagueness holding does not apply to the advisory Sentencing Guidelines and dismissed the § 2255 as time-barred and meritless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Derring's Johnson-based challenge to the § 2K2.1 enhancement is timely under 28 U.S.C. § 2255(f)(3) | Johnson’s new rule (ACCA residual-clause vagueness) restarts the one-year clock, so his § 2255 filed within a year of Johnson is timely | Johnson’s vagueness holding does not apply to advisory Guidelines; Beckles forecloses applying Johnson to § 2K2.1, so § 2255(f)(3) does not revive the limitations period | Dismissed as time-barred because Johnson does not restart the § 2255 limitations period for guideline challenges; petition also foreclosed on the merits by Beckles |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause held void for vagueness)
- Beckles v. United States, 137 S. Ct. 886 (2017) (advisory Sentencing Guidelines not subject to vagueness challenge)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson held retroactive to cases on collateral review)
- Clay v. United States, 537 U.S. 522 (2003) (finality for § 2255 limitations runs from expiration of certiorari period)
- Raines v. United States, 423 F.2d 526 (4th Cir. 1970) (district court may resolve § 2255 claims on the record)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for issuing a certificate of appealability)
- Slack v. McDaniel, 529 U.S. 473 (2000) (certificate of appealability standards where denial is on procedural grounds)