Opinion
CASE NO: 5:18-CR-12
12-31-2019
DECARLO L. SANDERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER MEMORANDUM
Before the Court is Petitioner Decarlo L. Sanders's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Doc #: 29. For the following reason, Sanders's Motion is DENIED.
FACTUAL BACKGROUND
On April 27, 2018, Sanders pled guilty to three charges: Count One, felon in possession of firearm in violation of 18 U.S.C. §§ 992(g)(1) and 924(a)(2); Count Two, possession of a firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and Count Three, possession with intent to distribute a detectable amount of Carfentanil in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Doc #: 17. On August 13, 2018, Sanders was sentenced to 18 months custody on Counts One and Three, and the mandatory minimum consecutive sentence on Count Two, for a total of 78 months custody of the Bureau of Prisons. Doc #: 24.
ANALYSIS
Sanders now asserts that he is entitled to relief from his sentence in light of the Supreme Court's holding in Davis v. United States, 139 S. Ct. 2319 (2019). Doc #: 29 at 4. Davis held that a portion of § 924(c) is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, Sanders argues that the 60 months he received for violating § 924(c)(1)(A) renders his sentence unconstitutional. Doc #: 29 at 4.
Sanders is wrong. Section 924(c) mandates a sentence enhancement when a person uses or carries a firearm in furtherance of certain predicate acts. 18 U.S.C. § 924(c)(1)(A). The first type of predicate act that renders a person eligible for a § 924 charge is a "crime of violence." Id. "Crime of violence" is defined as a felony that (1) "has as an element the use, attempted use, or threatened use of physical force against person or property of another," or (2) "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. §§ 924(c)(3)(A); (B).
The second type of predicate act is a "drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). A "drug trafficking crime" is defined as "any felony punishable under the Controlled Substances Act . . . the Controlled Substances Import and Export Act . . . or chapter 705 of title 46." 18 U.S.C. § 924(c)(2).
Davis held that defining "crime of violence" as an offense which "involves a substantial risk of physical force" is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Davis does not discuss the definition of "drug trafficking crime."
Here, Sanders's § 924 charge is based on carrying a firearm while possessing with intent to distribute a mixture and substance containing a detectable amount of Carfentanil in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Doc #: 3 at 2. This predicate act is a felony punishable under the Controlled Substances Act. Thus, Sanders's § 924 charge is based on a drug trafficking crime predicate act, not a crime of violence predicate act.
Because Sanders's § 924 charge is based on a drug trafficking crime predicate act, the holding in Davis is inapplicable. Accordingly, Davis does not render Sanders's sentence unconstitutional. Thus, Sanders's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, Doc #: 29, is DENIED.
IT IS SO ORDERED.
/s/ Dan Aaron Polster December 31 , 2019
Dan Aaron Polster
United States District Judge