United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
P. Watters United States District Court Judge
case comes before the Court on Defendant Baugus's motion
to vacate, set aside, or correct the sentence under 28 U.S.C.
§ 2255. Baugus is a federal prisoner proceeding pro
December 3, 2003, a jury convicted Baugus of two counts of
possessing methamphetamine and cocaine with intent to
distribute it, a violation of 21 U.S.C, § 841(a)(1)
(Counts 1 and 2); one count of carjacking, a violation of 18
U.S.C. § 2119(1) (Count 3); and one count of using or
carrying and brandishing a firearm during and in relation to
carjacking, a violation of 18 U.S.C. § 924(c)(1)(A) and
(ii) (Count 4). He was acquitted of two other drug counts. On
March 12, 2004, he was sentenced to serve 235 months on
Counts 1 and 2 and 180 months on Count 3, plus a consecutive
seven-year term on Count 4, for a total sentence of 319
(Doc. 103); Judgment (Doc. 104) at 2. On August 10, 2005, the
Court of Appeals affirmed Baugus's conviction and
remanded the sentence based on United States v.
Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). The
sentencing judge confirmed the sentence, and on May 3, 2006,
the Court of Appeals affirmed the sentence. See Mem.
(Doc. 155) at 2, United States v. Baugus, No.
05-30618 (9th Cir. May 3, 2006).
now seeks relief under the United States Supreme Court's
recent decision in Johnson v. United States, __ U.S.
__, 135 S.Ct. 2551 (2015). See also Welch v. United
States, __ U.S.__, 136 S.Ct. 1257, 1265 (2016) (holding
that Johnson applies to cases already final when it
was issued). His motion, filed pro se, purports to
challenge his sentence under the Sentencing Guidelines. His
argument is well off the mark. His sentences on Counts 1, 2,
and 3 did not take firearms into account, see
Presentence Report ¶¶ 77, 86, and his § 924(c)
conviction was not governed by any guideline.
Baugus asserts that "imposing an increased sentence
under the § 924(c) enhancement violates his Due Process
Rights because the clause is 'unconstitutionally'
vague." Mot. § 2255 (Doc. 261) at 11. The Court
will liberally construe Baugus's motion to make the only
argument available-that is, that his conviction under 18
U.S.C. § 924(c)(1)(A) and (ii) rested exclusively on the
definition of a "crime of violence" in the
"residual clause" of 18 U.S.C. § 924(c)(3)(B),
and that clause is unconstitutionally vague in light of
18 U.S.C. § 924(e)
Johnson, the Court considered the meaning of a
provision in the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes
a harsher sentence on a person convicted of a firearms
offense if the person has three prior convictions for a
violent felony or controlled substance offense. The Act
defines a "violent felony" as a felony that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). Johnson discussed
only the italicized clause, commonly called the
Supreme Court found the residual clause so vague that it
deprived defendants of fair notice of the consequences of
their decisions and so loose that it invited arbitrary
enforcement by sentencing judges. Therefore, the decision
held, federal sentencing courts may no longer enhance a
defendant's sentence based on a prior conviction when
that conviction qualifies as a "violent felony"
only under the residual clause. See Johnson, 135
U.S. at 2555-60, 2563. Johnson did not address
either subsection (i) or the first line of subsection (ii) in
§ 924(e)(2)(B). Those provisions remain valid law.