Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Wolfe

United States District Court, M.D. Pennsylvania

March 26, 2018

UNITED STATES OF AMERICA
v.
RICHARD ALLEN WOLFE Defendant

          MEMORANDUM

          Malachy E. Mannion, United States District Judge

         Pending before the court is defendant Richard Allen Wolfe's June 21, 2016 motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. §2255. and his request to be re-sentenced without a career offender enhancement under the U.S. Sentencing Guidelines ("Guidelines") based on Johnson v. United States, 135S.Ct.2551 (2015). (Doc. 86). Wolfe claims that after Johnson his predicate offenses no longer constitute crimes of violence and that he is no longer a career offender under the Guidelines. Thus, he claims that his 262-month term of confinement violates due process of law and should be vacated. On November 7, 2016, the court granted the government's motion to stay this case pending a decision from the Supreme Court in Beckles v. United States, 136 S.Ct. 2510 (2016). The court also denied Wolfe's request to be released on bond pending this court's decision on his §2255 motion. (Doc. 92).

         On July 18, 2017, the court issued an Order lifting the stay in this case since the decision in Beckles v. United States, 137 S.Ct. 886 (2017), had previously been issued. The court also directed Wolfe to file a supplemental brief in support of his motion regarding any effect of Beckles on his case and directed the government to file a supplemental brief in response. (Doc. 94). On August 4, 2017, Wolfe filed his supplemental brief, (Doc. 95), and the government filed its brief in response on August 25, 2017, (Doc. 96). Wolfe filed a reply brief on September 8, 2017. (Doc. 97).

         Based upon the court's review of the record in this case as well as the briefs of the parties, Wolfe's §2255 motion will be DISMISSED as untimely.

         I. BACKGROUND

         On December 13, 1999, Wolfe was found guilty by a jury of bank robbery with a dangerous weapon in violation of 18 U.S.C. §2113(d). The probation office prepared a presentence investigative report ("PSR") and Wolfe was determined to be a "career offender" under U.S.S.G. S4B1.1 based on his prior Pennsylvania conviction for recklessly endangering another person and his prior conviction in federal court for two counts of bank robbery and two counts of bank robbery with a dangerous weapon. (PSR ¶'s 32 & 33). Pursuant to U.S.S.G. §4B1.1(c)(2)(A), Wolfe's sentencing guideline range was 262 to 327 months based on a total offense level of 34 and a criminal history category of VI. (PSR ¶ 64).

         On June 19, 2000, the court adopted the PSR and sentenced Wolfe as a career offender to a term of 262 months confinement followed by a five-year term of supervised release.[1] Wolfe directly appealed his judgment of conviction and the Third Circuit affirmed it. See U.S. v. Wolfe, 245 F.3d 257 (3d Cir. 2001). Wolfe is currently serving his 262-month sentence at FCI-Ray Brook and his projected release date is January 17, 2019. (Doc. 90 at 3). On June 21, 2016, Wolfe filed his first §2255 motion. (Doc. 86).

         II. DISCUSSION

         Wolfe was sentenced on June 19, 2000, when the Sentencing Guidelines were mandatory, i.e., before United States v. Booker, 543 U.S. 220 (2005). In his §2255 motion, Wolfe states that he was sentenced as a "career offender" under the Guidelines, namely, U.S.S.G. S4B1.2(a) the residual clause of the Guidelines. He contended that the Guidelines' residual clause is unconstitutionally vague based on Johnson. In particular, Wolfe contends that based on Johnson he is not a career offender, he was prejudiced by the career offender status since he received a longer sentence and his 262-month sentence violates due process of law. He states that without the career offender enhancement his sentencing guideline is estimated to be 100 to 125 months based on an offense level of 24 and criminal history of IV. Wolfe states that his sentence under the mandatory career offender sentencing range was 137 months longer than the maximum prison term he would have received under the guidelines without the career offender designation. He seeks the court to grant his §2255 motion, vacate his sentence, and re-sentence him without the career offender enhancement. Wolfe also states that if was re-sentenced, the top of the non-career offender guideline would be 125 months and he would be subject to immediate release from confinement.

         In his supplemental brief, Wolfe argues that the Supreme Court's decision in Beckles does not preclude his instant challenge to his sentence under Johnson, since the Court only held in Beckles, 137 S.Ct. at 896, that "the advisory Sentencing Guidelines, including §4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine." Wolfe states that the Supreme Court concluded in Beckles, Id. at 897, that "[b]ecause the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, §4B1.2(a)'s residual clause is not void for vagueness." However, Wolfe points out that he was sentenced when the Guidelines were mandatory and thus, he states that since he was not sentenced under the advisory Guidelines, Beckles does not apply to his case. Wolfe contends that due process challenges like his still apply to the pre-Booker mandatory sentencing guidelines, under which he was sentenced, since they bound the court when it imposed sentences and they did not merely provide advice for the court in exercising its discretion as the advisory guidelines did. Wolfe states that "[u]nlike the sentencing court in Beckles, the Court in imposing [his] sentence could not have decided that a below guideline sentence was appropriate based on the sentencing factors set forth in 18 U.S.C. §3553(a) and could not have decided that his case warranted a different sentence regardless." Rather, he states that the court was required to impose a sentence on him within the career offender guideline range.

         Wolfe states that the Johnson case applies to cases like his under the ore-Booker mandatory Guidelines and, that this court should grant his motion since the use of the career offender provisions in the mandatory Guidelines violate the Due Process Clause. He further argues that the Johnson case applies retroactively to the mandatory Guidelines, and that Beckles "confirms that Johnson constitutes a substantive rule that applies retroactively to mandatory guidelines sentences in light of Welch v. United States, 136 S.Ct. 1257 (2016)." Wolfe states that "[i]n limiting its holding to the advisory sentencing guidelines, Beckles became another of the 'multiple holdings that logically dictate the retroactivity of the new rule' announced in Johnson in the mandatory sentencing guidelines context."

         Additionally, Wolfe contends that since Johnson constitutes a substantive decision that applies retroactively to mandatory sentencing guidelines cases like his, his §2255 motion, filed on June 21, 2016, is timely under 28 U.S.C, S2255(f)(3) since it was filed within one year of the June 26, 2015 Johnson decision. Wolfe maintains that the Court in Beckles only held that the advisory Guidelines were not subject to a vagueness challenge and that decision does not preclude him from challenging his mandatory Guidelines sentence based on Johnson. As relief, Wolfe requests the court to grant his §2255 motion, vacate his sentence and, re-sentence him without the career offender enhancement. Wolfe, alternatively, requests that if the court denies his §2255 motion, the court issue a certificate of appealability ("COA") to the Third Circuit for the Court to consider whether the holding in Beckles effects sentences imposed under the mandatory Guidelines before Booker, i.e., whether Wolfe can assert a Johnson vagueness challenge to his mandatory Guidelines sentence.

         The government argues that Wolfe's motion is untimely under 28 U.S.C. S2255(f)C(1) and should be dismissed since his §2255 motion was filed more than one year after his conviction became final when the Supreme Court denied certiorari in his case on November 2, 2001. Pursuant to §2255(f)(1), the defendant must make this motion within one year of the date on which the judgment of conviction becomes final.

         At issue in this case is whether the Supreme Court's decision in Johnson invalidating the "residual clause" of the Armed Career Criminal Act's ("ACCA") definition of a crime of violence for vagueness should also apply to mandatory Guidelines sentences, such as Wolfe's sentence under the career offender guideline range. The definition of crimes of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.