UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eric Lord

v. Civil No. 16-cv-071-JD Opinion No.

United States of America

O R D E R

Eric Lord, proceeding pro se, moved under

to vacate his sentence for bank robbery on grounds arising from

his designation as a career offender under the United States

Sentencing Guidelines. Counsel was appointed to represent Lord.

The government has filed its response to Lord’s motion for

§ 2255 relief, and Lord has responded.

Background

Lord pleaded guilty to one charge of bank robbery. Under

the terms of the plea agreement, the government and Lord agreed

to a recommended sentence of 120 months.

Lord was deemed to be a career offender, which elevated his

offense level for sentencing, based on two prior felony

convictions of robbery in 2003 and burglary in 2009. The 2003

robbery occurred when Lord grabbed a woman’s pocketbook in a

store parking lot. The 2009 burglary conviction arose from two incidents when Lord unlawfully entered different residences in

Jaffrey, New Hampshire.

During the sentencing hearing, the court noted that under

the sentencing guidelines the sentencing range was 151 to 188

months. Because of Lord’s background and the circumstances of

the crime, however, the court accepted the recommended sentence

of 120 months. Judgment was entered on February 17, 2015. Lord

did not appeal his sentence.

Discussion

Lord brings three claims in support of relief under § 2255.

Lord agrees with the government that his first claim is now

precluded by Beckles v. United States,

(2017).

In his second claim, Lord contends that the career offender

designation in his case was a fundamental miscarriage of

justice. In his third claim, he contends that the court

violated his right to due process by not making findings as to

whether his 2003 robbery conviction and 2009 burglary conviction

were crimes of violence within the meaning of the USSG. The

government contends that neither claim has merit.

“Section 2255 contemplates four potential bases on which a

federal prisoner may obtain relief: (1) ‘that the sentence was

imposed in violation of the Constitution or laws of the United

States’; (2) ‘that the court was without jurisdiction to impose

2 such sentence’; (3) ‘that the sentence was in excess of the

maximum authorized by law’; or (4) that the sentence ‘is

otherwise subject to collateral attack.’” Damon v. United

States,

(1st Cir. 2013) (quoting § 2255(a)). A

sentence is “otherwise subject to collateral attack” only if

errors occurred “that reveal ‘fundamental defect[s]’ which, if

uncorrected, will ‘result[] in a complete miscarriage of

justice,’ or irregularities that are ‘inconsistent with the

rudimentary demands of fair procedure.’” David v. United

States,

(1st Cir. 1998) (quoting Hill v.

United States,

(1962)). “The burden of proof

is on the petitioner.” Wilder v. United States,

(1st Cir. 2015).

I. Application of Career Offender Designation

The government notes that an unresolved issue exists among

circuit courts as to whether an error in applying the Guidelines

can support relief under § 2255. See Damon,

.

In addition, Lord did not appeal his sentence, which results in

procedural default that can be overcome only by showing cause

and prejudice for the default or a miscarriage of justice.

Bousley v. United States,

(1998). Lord

asserts that the application of the career offender designation

to him resulted in a fundamental miscarriage of justice, not

3 merely a misapplication of the Guidelines. See Cuevas v. United

States,

(1st Cir. 2015). The government

acknowledges Lord’s constitutional challenge and does not

challenge the claim on procedural grounds.

In his motion for relief under § 2255, Lord alleges that

the career offender designation doubles the length of the

sentence for an average defendant. He further alleges that in

his case the career offender designation caused the Guidelines

range to increase from 70 to 87 months up to a range of 151 to

188 months, which caused him to accept the 120-month sentence

offered in the plea agreement. He claims that both of his

predicate offenses would be questionable predicates, noting that

the Guidelines definition of burglary was amended in 2016.

Lord analogizes his claim to the circumstances in Cuevas,

where the defendant’s career offender predicate offenses were

vacated after the defendant was sentenced.

.

The court held that Cuevas’s claim, based on the subsequent

invalidity of his predicate convictions, was an exceptional

circumstance that was cognizable under the fourth prong of §

2255(a). Id. at 271-72. Cuevas’s case was remanded for

resentencing. Id. at 276.

Lord’s predicate convictions have not been vacated and

remain valid. Lord argues instead that his burglary conviction

4 no longer meets the definition of a crime of violence under

§ 4B1.2(a)(2), based on the 2016 amendment.1 The amendment of

the Guidelines does not present the exceptional case that the

court recognized in Cuevas. See also Tosi v. United States,

, at *3-*4 (D. Me. Sept. 20, 2016). Therefore,

Lord cannot seek relief based on the analysis in Cuevas.

Lord also argues that the 2016 amendment to § 4B1.2(a)(2)

makes his sentence a miscarriage of justice. In 2015, the

Supreme Court held that the residual clause of the definition of

violent felony in the Armed Career Criminal Act (“ACCA”),

(e)(2)(B), was unconstitutionally vague so that

sentences imposed based on the residual clause violated due

process. Johnson v. United States,

(2015). The Sentencing Commission then amended the definition

of a crime of violence used in determining career offender

designation under the Guidelines by removing the residual clause

and burglary from the definition. United States v. Johnson,

(11th Cir. 2016); United States v. Childers,

, at *6 (D. Me. June 13, 2017).

The 2016 amendment to § 4B1.2(a) was not made retroactive

and cannot be applied retroactively. United States v. McCalop,

1 To the extent Lord also challenges the use of his 2003 robbery conviction as a predicate offense, he provides no developed argument to support that theory.

5 --- F. App’x ---,

, at *2 (11th Cir. June 20,

2017); Daniels v. United States,

, at *1, n.1

(E.D. Wisc. June 16, 2017); United States v. Dandridge,

, at *1, n.2 (W.D. Va. Nov. 8, 2016). In addition, the

Supreme Court held in Beckles that “the Guidelines are not

subject to a vagueness challenge under the Due Process Clause.”

. As a result, the pre-amendment version of

§ 4B1.2, which included the residual clause, as well as

burglary, as part of the definition of a crime of violence, was

valid. Childers,

, at *6. Lord has not shown

any miscarriage of justice arising from his sentencing under the

pre-amendment version of § 4B1.2.

II. Due Process

Relying on Mathis v. United States,

(2016), Lord contends that his burglary conviction could not be

used as a predicate offense for career offender designation

because the definition of burglary under New Hampshire law is

broader than the generic definition used in the Guidelines. As

Lord acknowledges, however, Mathis applies to the ACCA, not the

Guidelines. See Davis v. United States,

, at *3

(S.D. Ill. June 14, 2017); United States v. Williams,

, at *2 (M.D. Fla. June 7, 2017); United States v. Birko,

6

, at *1 (N.D. Fla. May 31, 2017); Smith v. United

States,

, at *1 (S.D. Ga. Apr. 11, 2017).

As is stated above, Lord bears the burden of showing that

he is entitled to relief under § 2255. Lord makes no argument

to show that the holding in Mathis would also apply to § 4B1.2,

despite the analysis in Beckles and, therefore, has not carried

his burden. See United States v. Carter, --- F.3d ---,

(1st Cir. June 22, 2017); Coons v. Indus. Knife

Co., Inc.,

(1st Cir. 2010). In addition,

because the pre-amendment residual clause of § 4B1.2, which

applied to Lord, is valid, the burglary conviction would

constitute a crime of violence under the residual clause, even

if Mathis applied to burglary as used in the pre-amendment

version of § 4B1.2. See Edwards v. United States,

, at *5 (E.D. Tenn. May 11, 2017); Pendleton v. United

States,

, at *2 (S.D. Ill. Mar. 29, 2017).

Conclusion

For the foregoing reason, the plaintiff’s motion for relief

under § 2255 (document no. 1) is denied.

The court declines to issue a certificate of appealability

because the plaintiff has not made a substantial showing of the

denial of a constitutional right, as is required under

(c)(2).

7 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

June 27, 2017

cc: Donald A. Kennedy, Esq. Seth R. Aframe, Esq.

8