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United States v. Morrison

United States District Court, M.D. Florida, Tampa Division

February 14, 2018

UNITED STATES OF AMERICA,
v.
ROBERT M. MORRISON.

          ORDER

          Elizabeth A. Kovachevich, Judge

         This cause is before the Court on:

Dkt. 926 Motion for Reconsideration
Dkt. 936 Motion to Preserve Beckles Claims Should This Circuit Deem It Retroactive

Dkt. 926 Motion for Reconsideration

         Defendant Robert M. Morrison, qto se, requests that the Court review Defendant Morrison's sentence (Dkt. 569) in light of Johnson v. United States. 135 S.Ct. 2551 (2OI5)(holding residual clause of ACCA void for vagueness).

         Defendant Morrison was sentenced on March 6, 2007 to a term of imprisonment of 262 months, followed by 60 months of supervised release, and a $100 special assessment fee. A forfeiture order forfeiting Defendant Morrison's interest in $26, 080 in U.S. currency is also attached to the Final Judgment. (Dkt. 569).

         On June 23, 2016, the Eleventh Circuit Court of Appeals denied Defendant Morrison's application seeking an order authorizing the District Court to consider a second or successive motion to vacate, set aside or correct Defendant Morrison's federal sentence. (Dkt. 933). The Eleventh Circuit found that Defendant Morrison did not make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. Sec. 2255(h), and therefore denied Defendant Morrison's request to file a second or successive motion.

         Defendant Morrison sought to raise two claims in a second or successive Sec. 2255 motion based on the new rule of constitutional law announced in Johnson v. United States, 135 S.Ct. 2551 (2015): 1) Defendant Morrison contended that Defendant no longer qualified as a career offender under the Sentencing Guidelines because battery on a law enforcement officer no longer qualifies as a crime of violence after Johnson; and 2) Defendant Morrison asserted that Johnson and Welch v. United States, 136 S.Ct. 1257 (2016)(holding Johnson announced a substantive rule that applied retroactively on collateral review) constituted newly discovered evidence.

         The Eleventh Circuit Court of Appeals explained that Defendant Morrison was sentenced as a career offender pursuant to U.S.S.G. Sec. 4B1.1, not as an armed career criminal under the Armed Career Criminal Act. Defendant Morrison was designated a career offender based on a 1989 Florida conviction for sale of cocaine, a 1996 Florida conviction for aggravated assault, and a 1999 Florida conviction for battery on a law enforcement officer. The Eleventh Circuit explained that the vagueness doctrine did not apply to advisory Sentencing Guidelines, citing United States v. Matchett 802 F.3d 1185, 1193-96 (11th Cir. 2015). The Eleventh Circuit further explained that binding precedent does not make Johnson retroactive for the purposes of filing a successive Sec. 2255 motion raising a Johnson-based challenge to the Sentencing Guidelines, citing In re Griffin, 823 F.3d 1350 (11th Cir. 2016).

         Based on the decision of the Eleventh Circuit Court of Appeals denying Defendant Morrison's application for leave to file a second or successive Sec. 2255 motion, the Court denies Defendant Morrison's Motion for Reconsideration. Dkt. 936 Motion to Preserve Beckles Claims Defendant Robert M. Morrison, qto se, moves to preserve Beckles claims should this Circuit deem it retroactive.

         Section 4B1.1 of the Sentencing Guidelines provides that a defendant is classified as a career offender if he (1) was at least 18 years old at the time of the offense of conviction; (2) the offense of conviction was either a crime of violence or a controlled-substance offense; and (3) he had at least 2 prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. Sec. 4B1.1(a). The guidelines define "crime of violence" as any offense under federal or state law that is punishable by imprisonment for more than one year and:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential ...

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