United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is the Motion to Vacate Sentence under 28 U.S.C.
§ 2255 (Doc. 152) filed by Defendant William Jenkins.
For the reasons that follow, the motion will be denied, but a
certificate of appealability will be issued.
November 21, 1997, Defendant was convicted by a jury of the
following: conspiracy in violation of 18 U.S.C. § 371
(Count 1 of the Indictment); marijuana conspiracy in
violation of 21 U.S.C. § 846 (Count 2); distribution of
controlled substances in violation of 21 U.S.C. §
841(a)(1) (Count 3); using and carrying firearms in
connection with drug trafficking in violation of 18 U.S.C.
§ 924(c)(1) (Count 4); interstate travel in aid of
racketeering in violation of 18 U.S.C. § 1952 (Count 5);
transportation of machine guns in interstate commerce in
violation of 18 U.S.C. § 922(a)(4) (Count 6); false
statements in connection with the acquisition of firearms in
violation of 18 U.S.C. § 922(a)(6) (Count 7); possession
of firearms by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1) (Count 8); unlawful transfer of machine guns
in violation of 18 U.S.C. § 922(o) (Count 10); and
possession of a firearm without a serial number in violation
of 26 U.S.C. § 5861(1) (Count 11). See United
States v. Jenkins, 9 F.Supp.2d 507, 508 & n.1 (M.D.
Presentence Investigation Report (“PSR”) was
prepared which calculated Defendant's total offense level
in accordance with the United States Sentencing Guidelines
(the “Guidelines”). (See PSR,
generally). The PSR divided Defendant's
convictions into two separate groups because they involved
separate societal interests. (See id. at ¶ 28).
The Group One offenses (Counts 6-8, 10, 11, and three of the
substantive offenses charged in Count 1) were determined to
have an adjusted offense level of 30, though the Guidelines
provided that the cumulative offense level shall not exceed
29. (See id. at ¶¶ 26, 36). The Group Two
offenses (Counts 2, 3, 5, and one of the substantive offenses
charged in Count 1) were found to have an offense level of 22
because the offenses involved at least 60 but less than 80
kilograms of marijuana. (See id. at ¶¶ 27,
37). The PSR calculated the combined adjusted offense level
to be 30, and noting that Defendant was “defined as a
career offender in accordance with U.S.S.G. §
4B1.1”, Defendant's total offense level was
determined to be 32. (Id. at ¶¶ 48, 51).
The PSR also noted that, with respect to Defendant's
conviction on Count 4 for violation of § 924(c)(1),
“[t]he term of imprisonment is that required by
statute.” (Id. at ¶ 53).
total offense level of 32 and criminal history category of VI
yielded a Guidelines imprisonment range of 210 to 262 months,
plus a mandatory term of 360 months confinement to run
consecutive to that term as a result of Defendant's
conviction on Count 4. (See id. at ¶ 72 (citing
U.S.S.G. §§ 2K2.4(a) and 5G1.2(a))). Although
Defendant objected to the determination that he was a career
offender, (see Defendant's Objections, ¶
51), the PSR's recommendations were adopted, and
Defendant, as a career offender, was sentenced by the
Honorable William J. Nealon to a total term of imprisonment
of 570 months on September 29, 1998. (See docket,
generally). The sentence consisted of 60 months on
each of Counts 1, 5, and 6; 120 months on each of Counts 7,
8, 10, and 11; and 210 months on each of Counts 2 and 3, all
to be served concurrently. (See id.). Defendant was
additionally sentenced to a consecutive term of 360 months on
Count 4. (See id.).
appealed to the United States Court of Appeals for the Third
Circuit, which affirmed his conviction and sentence on June
24, 1999. See United States v. Jenkins, 185 F.3d 863
(3d Cir. 1999). The United States Supreme Court denied
Defendant's petition for writ of certiorari on
November 1, 1999. See Jenkins v. United States, 528
U.S. 976, 120 S.Ct. 430, 145 L.Ed.2d 336 (1999).
first motion to vacate sentence was filed on September 20,
2000. (See Doc. 121). Judge Nealon denied that
motion on February 1, 2001 and declined to issue a
certificate of appealability. (See Doc. 132).
Defendant appealed, and on August 1, 2002, the Third Circuit
issued a certificate of appealability limited to
Defendant's claim under Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
(See Doc. 138). The Third Circuit affirmed the
denial of Defendant's first § 2255 motion on June
18, 2003. See United States v. Jenkins, 333 F.3d
151, 155 (3d Cir. 2003). Defendant's petition for writ of
certiorari was denied on October 6, 2003. See
Jenkins v. United States, 540 U.S. 932, 124 S.Ct. 350,
157 L.Ed.2d 239 (2003).
March 9, 2006, the Third Circuit denied Defendant's
application for leave to file a second or successive motion
pursuant to 28 U.S.C. §§ 2244(b) and 2255.
(See Doc. 145). Defendant then filed a motion titled
“Petition for a Writ of Audita Querela under Title 28,
United States Code, Section § [sic] 1651” on May
31, 2011. (See Doc. 147). Judge Nealon construed
that filing as a second or successive § 2255 petition
and dismissed that petition. (See Doc. 148).
February 3, 2012, Defendant again filed a motion to vacate
sentence under § 2255. (See Doc. 149). That
motion was denied on February 10, 2012. (See Docs.
April 26, 2016, Defendant filed with the Third Circuit an
application for leave to file a second or successive §
2255 motion in this case. On June 23, 2016, Defendant filed a
proposed motion to vacate his sentence under § 2255
based on the Supreme Court's decision in Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d
569 (2015). (See Doc. 152). In that motion, it is
argued, inter alia, that Johnson is
applicable to Defendant “who was determined to be a
career offender based on the residual clause of the
definition of crime of violence within the Sentencing
Guidelines.” (Id. at 4). Also on June 23,
2016, Defendant filed a motion to stay his proposed §
2255 motion until the Third Circuit resolved his motion for
authorization to file a second or successive § 2255
motion. (See Doc. 153). Defendant's motion to
stay was granted by Order dated June 27, 2016. (See
Doc. 155). On November 2, 2017, the Third Circuit
granted Defendant's application to file a successive
§ 2255 motion and the stay was lifted. (See
28 U.S.C. § 2255 establishes a 1-year period of
limitation within which a federal prisoner may file a motion
to vacate, set aside, or correct his sentence under that
section.” Dodd v. United States, 545 U.S. 353,
354, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (internal
quotation omitted). The 1-year period of limitation
“runs from ‘the latest' of a number of
events, which are enumerated in [§ 2255(f)(1)-(4)
].” Id. Defendant contends that his motion is
timely pursuant to § 2255(f)(3), (see Doc. 152,
14), which allows a defendant to file a motion seeking to
collaterally attack his sentence within one year from
“the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C.
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”)
was unconstitutionally void for vagueness. See
Johnson, 135 S.Ct. at 2563 (“We hold that imposing
an increased sentence under the residual clause of the Armed
Career Criminal Act violates the Constitution's guarantee
of due process.”). In April 2016, the Supreme Court
determined that Johnson created a new substantive
rule of constitutional law ...