Shepperd v. United States

Background

Marcus Shepperd, who represented himself, filed a petition under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his November 20, 2014 sentence. He had pleaded guilty to one count of conspiracy to distribute crack cocaine under 21 U.S.C. § 846 and one count of possessing a firearm during and in furtherance of a drug-trafficking offense under 18 U.S.C. § 924(c)(1)(A)(iii). The court imposed 90 months on the drug-conspiracy count and 60 consecutive months on the firearm count, for a total of 150 months, plus supervised release.

The plea agreement included a waiver of direct appeal and collateral challenges, including challenges under § 2255, for a sentence within or below the stipulated guidelines range. Shepperd did not file a direct appeal. He later filed this petition after the Supreme Court’s decision in Sessions v. Dimaya, which held that a residual clause defining certain crimes of violence was unconstitutionally vague. He also moved for appointed counsel.

Arguments

Shepperd argued that the residual clause in § 924(c)(3)(B), which defines one category of “crime of violence,” was identical to the clause invalidated in Dimaya. He therefore argued that his § 924(c) conviction could not stand.

The government argued that Dimaya did not affect Shepperd’s sentence because his conviction was not based on the § 924(c) crime-of-violence definition. The government also argued that the plea agreement independently barred his collateral challenge.

Court’s Analysis

The court agreed that the Supreme Court later invalidated § 924(c)(3)(B)’s residual clause as unconstitutionally vague in United States v. Davis. But the court distinguished that ruling from Shepperd’s case. Section 924(c) also applies when a firearm is used or possessed during a “drug trafficking crime,” which is separately defined by statute. Shepperd’s firearm conviction was based on his drug-conspiracy conviction, a drug-trafficking crime, rather than on a crime of violence. The invalidation of the crime-of-violence residual clause therefore had no effect on his conviction or sentence.

Because the petition failed on the merits as a matter of law, the court did not decide whether the plea-agreement waiver also required dismissal. The court also concluded that Shepperd was not entitled to an evidentiary hearing because he had not presented specific, supported facts that would entitle him to relief if proved.

Disposition

Judge Kenneth M. Karas denied the petition’s requested relief and denied the motion to appoint counsel. In the conclusion, the court dismissed the petition with prejudice, directed the Clerk to enter judgment for the United States, and closed the civil case.