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.

McCandless v. United States

United States District Court, D. Hawaii

September 12, 2017

JAMES McCANDLESS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CV No. 15-00461 DKW-KJM

          ORDER DISMISSING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On May 7, 2012, Petitioner James McCandless was sentenced to a 145-month term of imprisonment for possessing with the intent to distribute 5 grams or more of methamphetamine. On November 3, 2015, McCandless filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”), which the Court held in abeyance pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). McCandless contends that his enhancement under the Sentencing Guidelines career-offender provision violates due process in light of Johnson v. United States, 135 S.Ct. 2551 (2015), notwithstanding Beckles, which forecloses a vagueness challenge to the residual clause of the advisory Guidelines.[1] Because McCandless did not file his Section 2255 Motion within one year after his conviction became final and because Johnson neither applies to nor extends the filing-deadline for Guidelines challenges on collateral review, McCandless' Section 2255 Motion is not timely. The Court therefore dismisses the Section 2255 Motion and declines to issue a certificate of appealability.

         BACKGROUND

         I. Plea And Sentencing

         On November 1, 2010, McCandless and a co-defendant were charged in a single-count Information with conspiring to possess with the intent to distribute 5 or more grams (approximately 19.6 grams) of methamphetamine, its salts, isomers, and salts of its isomers, in violation of 18 U.S.C. §§ 841(a)(1), (b)(1)(b) and 846. See Dkt. No. 64 (11/1/10 Information). On November 3, 2010, the government filed a Special Information giving notice that it proposed to rely on defendant's prior August 7, 2008 conviction for felony drug offenses in the Circuit Court for the Third Circuit, State of Hawaii, in Cr. No. 07-1-517, in support of its claim that McCandless was subject to an increased mandatory minimum term, pursuant to 21 U.S.C. §§ 841(b) and 851. See Dkt. No. 68 (11/3/10 Special Information).

         On November 5, 2010, McCandless waived indictment and pled guilty before a magistrate judge to the single-count Information without a plea agreement. See Dkt. No. 73 (11/5/10 Court Minutes), Dkt. No. 77 (11/5/10 Waiver of Indictment), Dkt. No. 79 (11/5/10 Report and Recommendation); Dkt. No. 86 (11/29/10 Acceptance of Plea of Guilty).

         On May 7, 2012, the sentencing court granted the government's motion for a downward departure (Dkt. No. 146), adopted the findings of the Presentence Investigation Report (“PSR”), and sentenced McCandless to a term of imprisonment of 145 months.[2] See Dkt. No. 159 (5/7/12 Court Minutes), Dkt. No. 160 (5/9/2012 Judgment); Dkt. Nos. 161-162 (5/11/12 PSR). The PSR reflected that McCandless qualified as a career offender under U.S.S.G. § 4B1.1 based upon prior state court felony convictions for: (1) a crime of violence (Burglary in the Second Degree)[3]; and (2) a controlled substance offense (Promoting a Dangerous Drug in the Second Degree). See PSR, Addendum No. 2 at 2A-6A. The sentencing court also imposed an eight-year term of supervised release. Id.

         McCandless did not file a direct appeal of his conviction and sentence.

         II. Section 2255 Motion[4]

         On November 3, 2015, McCandless filed his Section 2255 Motion, relying upon the Supreme Court's decision in Johnson, which held that the Armed Career Criminal Act's (“ACCA”), 18 U.S.C. § 924(e)(2)(b), residual clause is unconstitutionally vague and therefore may not serve as the basis for a sentence enhancement under the Act. Id. at 2557. McCandless was not sentenced under the ACCA. He nevertheless contends that his sentence is unconstitutional under Johnson because his advisory Sentencing Guidelines range was enhanced using the similar residual clause language contained in the Guidelines' career-offender provision. See 11/3/15 Mem. in Supp., Dkt. No. 164-1; 2/11/16 Mem. in Supp., Dkt. No. 172.

         McCandless maintains that he is not a career offender under the Guidelines because his second degree burglary conviction is not a “crime of violence” under the elements and enumerated offenses clauses of the career offender provision, and because Johnson disallows reliance on the residual clause. According to McCandless, he should not have been enhanced under U.S.S.G. § 4B1.1, his total offense level should have been 27, rather than 34, and his applicable guideline range should have been 130 to 162 months, rather than 262 to 327 months. 11/3/15 Mem. in Supp. at 18. Employing his logic, the “substantial assistance he provided, which [the sentencing court] found to be worth taking 45% off the low end of his guideline range, results in an 71-month sentence, not the 145-month sentence [McCandless] is presently (and unconstitutionally) serving.” Id. The government opposed the Section 2255 Motion on the grounds that it was untimely filed and procedurally barred due to the lack of a direct appeal. See 1/21/16 Answer to Mot., Dkt. No. 169.

          On July 8, 2016, while his interlocutory bail appeal was pending, [5] this Court issued its order holding in abeyance consideration of the merits of the Section 2255 Motion, pending the Supreme Court's decision in Beckles, involving claims that Johnson applied equally to the residual clause of the Sentencing Guidelines. See Dkt. No. 189. Following the decision in Beckles and the denial of a petition for a writ of certiorari in his bail appeal (Dkt. No. 195), McCandless filed a Supplemental Memorandum on July 25, 2017, arguing that his due process claim is viable under Johnson, notwithstanding the holding in Beckles. See Suppl. Mem. in Supp. at 3, Dkt. No. 196 (“[E]ven though the void-for-vagueness doctrine does not reach §4B1.2's residual clause . . . like the ACCA's defunct residual clause, section 4B1.2's residual clause taints any sentence it touches with unreliability and arbitrariness.”). The government filed a Supplemental Response as directed on August 25, 2017 (Dkt. No 198), and McCandless sua sponte filed a Reply on August 31, 2017 (Dkt. No. 199).

         STANDARD OF REVIEW

         Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The statute authorizes the sentencing court to grant relief if it concludes “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” Id.

         In addition, the Court shall hold an evidentiary hearing on a petitioner's motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). The standard for holding an evidentiary hearing is whether the petitioner has made specific factual allegations that, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). In other words, “[a] hearing must be granted unless the movant's allegations, when ...


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.