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United States v. Berry

United States District Court, N.D. Ohio

April 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARKCUS D. BERRY, Defendant.

          OPINION & ORDER [RESOLVING DOCS. 30, 33, 34]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

         On August 19, 2013, Defendant Markcus D. Berry pled guilty to being a felon in possession of a firearm.[1] Berry petitions for habeas corpus relief under 28 U.S.C. § 2255.[2]Defendant says his sentence is unconstitutional, he is actually innocent, and he received ineffective assistance of counsel.[3] These arguments lose.

         First, Berry argues that his predicate offenses no longer qualify as crimes of violence and he was improperly sentenced under the United States Sentencing Guideline § 2K2.1.[4] The Supreme Court's recent opinion in Beckles v. United States[5] forecloses his argument.

         Defendant Berry's argument centers on the relationship between the Guidelines and the Armed Career Criminals Act.

         On June 26, 2015, the Supreme Court gave an opinion in Johnson v. United States, holding that the residual clause of the Armed Career Criminals Act was unconstitutionally vague.[6] If a sentencing court imposed an increased sentence based on felonies that qualified under the residual clause alone, that sentence violated a criminal defendant's constitutional right to due process.[7]

         A criminal defendant sentenced under the ACCA residual clause can collaterally challenge his ACCA affected sentence in a § 2255 habeas proceeding.[8]

         The Guidelines' career offender provision defines “crime of violence” using the same language ruled unconstitutional in Johnson.[9] Therefore, since Johnson, many criminal defendants sentenced under the Guidelines' career offender provision have argued that Johnson's holding should also apply retroactively to Guidelines cases.

         In Beckles, the Supreme Court rejected this argument. In Beckles, the petitioner argued that because the Court's Johnson opinion held “that the identically worded residual clause in the Armed Career Criminal Act . . . was unconstitutionally vague . . . the Guidelines' residual clause is also void for vagueness.”[10]

         In answering this argument, the Beckles Court held that because of the Guidelines' advisory nature, they “are not subject to vagueness challenges under the Due Process Clause.”[11]

         The Supreme Court's decision dictates the outcome of Beckles-dependant cases pending across the federal courts. Berry's sentence is constitutional.

         Next, Berry raises actual innocence and ineffective assistance of counsel claims.[12] Berry says his predicate offenses do not qualify him as a felon because they carry sentences of less than a year.[13] Berry reasons that this Court never should have sentenced him as a felon in possession of a firearm and his attorney gave ineffective assistance by failing to argue this point.[14]

         These arguments lose.

         Berry is a felon. Under 18 U.S.C. § 922(g)(1), a defendant may be prosecuted as a felon in possession of a firearm if he “has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” Berry was convicted of fourth degree assault on a police officer, [15] a crime punishable by imprisonment for up to eighteen months.[16] Defendant's actual innocence claim fails.

         Berry did not receive ineffective assistance of counsel. “Omitting meritless arguments is neither professionally unreasonable nor prejudicial.”[17] Defense counsel had ...


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