IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RONNIE D GASTON, 

CASE NO. 2:16-CV-00583

Petitioner, CRIM. NO. 2:12-CR-00030

JUDGE JAMES L. GRAHAM

v. Magistrate Judge Kimberly A. Jolson

UNITED STATES OF AMERICA, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings the instant Pro Se Motion to Vacate under 28 U.S.C. 

§ 2255. (Doc. 39). This matter is before the Court pursuant to its own motion to consider the 

sufficiency of the petition pursuant to Rule 4(b) of the Rules Governing Section 2255 

Proceedings. For the reasons that follow, the Magistrate Judge RECOMMENDS that this 

action be DISMISSED. 

I. FACTS AND PROCEDURAL HISTORY

On August 16, 2012, Petitioner pleaded guilty pursuant to the terms of his Plea 

Agreement to possession with intent to distribute 500 grams or more of cocaine, in violation of 

21 U.S.C. § 841(a)(1). (Docs. 18, 23). On June 7, 2013, the District Court imposed 120 months 

incarceration, followed by five years of supervised release. (Docs. 32, 33). On September 15, 

2015, the Court denied Petitioner’s Motion for Retroactive Application of Sentencing Guidelines 

to Crack Cocaine Offense. (Doc. 38). On June 23, 2016, Petitioner filed the instant Pro Se 

Motion to Vacate under 28 U.S.C. § 2255. (Doc. 39). Petitioner asserts that, in view of Johnson 

v. United States, -- U.S. --, 135 S. Ct. 2551 (2015) (declaring “residual clause” of 18 U.S.C. § 

924(e)(2)(B)(ii) of the Armed Career Criminal Act (“ACCA”) to be unconstitutionally vague), 

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he was improperly sentenced as a career offender. Under the reasoning of Johnson, Petitioner 

argues, § 4B1.1 and § 4B1.2 of the United States Sentencing Guidelines are constitutionally 

invalid, and his prior state court convictions fail to qualify him for career offender status. 

II. DISCUSSION 

Under the ACCA, a criminal defendant who possesses a firearm after three or more 

convictions for a “serious drug offense” or a “violent felony” is subject to a minimum sentence 

of 15 years and a maximum term of life in prison. 18 U.S.C. § 924(e)(1). The ACCA defines 

the term “violent felony” as follows: 

(B) the term “violent felony” means any crime punishable by 

imprisonment for a term exceeding one year, or any act of juvenile 

delinquency involving the use or carrying of a firearm, knife, or 

destructive device that would be punishable by imprisonment for 

such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use 

of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, 

or otherwise involves conduct that presents a serious 

potential risk of physical injury to another[.] 

18 U.S.C. § 924(e)(2) (emphasis added). The italicized portion referred to above in subsection 

(ii) is known as the “residual clause.” See Welch v. United States, -- U.S. --, --, 136 S. Ct. 1257, 

1261 (2016) (holding that Johnson applies retroactively to cases on collateral review) (citing 

Johnson, 135 S. Ct. at 2555–56). It is this section of the statute that the Supreme Court in 

Johnson declared to be unconstitutionally vague. 

In the Johnson Court’s view, the “indeterminacy of the wideranging inquiry” made the residual clause more unpredictable and 

arbitrary in its application than the Constitution allows. Id., at –––, 

135 S. Ct., at 2557. “Invoking so shapeless a provision to condemn 

someone to prison for 15 years to life,” the Court held, “does not 

comport with the Constitution's guarantee of due process.” Id., at 

––––, 135 S. Ct., at 2560.

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Welch, 136 S. Ct. at 1262. 

Petitioner was not sentenced under the terms of the ACCA, but as a career offender 

pursuant to U.S.S.G. § 4B1.1(a),1 which increases the sentencing guideline range of those 

convicted of a “crime of violence” or a “controlled substance offense” who have at least two 

prior felony convictions of such offenses. 

Section 4B1.2(b) defines “controlled substance offense” as 

an offense under federal or state law, punishable by imprisonment 

for a term exceeding one year, that prohibits the manufacture, 

import, export, distribution, or dispensing of a controlled substance 

(or a counterfeit substance) or the possession of a controlled 

substance (or a counterfeit substance) with intent to manufacture, 

import, export, distribute, or dispense.

And § 4B1.2(a) defines a “crime of violence” as any offense under state or federal law 

punishable by a term of imprisonment exceeding one year that 

(1) has as an element the use, attempted use, or threatened use of 

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of 

explosives, or otherwise involves conduct that presents a serious 

potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). 

The United States Court of Appeals for the Sixth Circuit has invalidated the italicized 

portion, or “residual clause,” of U.S.S.G. § 4B1.2(a)(2), which involves identical language to the

portion of the ACCA invalidated in Johnson, as unconstitutionally vague based on the reasoning 

in Johnson. United States v. Pawlak, 822 F.3d 902, 907 (6th Cir. 2016). The Supreme Court 

 1 U.S.S.G. § 4B1.1(a) provides: 

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the 

defendant committed the instant offense of conviction; (2) the instant offense of conviction is a 

felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has 

at least two prior felony convictions of either a crime of violence or a controlled substance offense.

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has not yet decided the issue, or determined whether Pawlak constitutes a new rule that is to be 

retroactively applied on collateral review. See In re Embry, -- F.3d --, 2016 WL 4056056 (6th

Cir. July 29, 2016) (successive habeas corpus petition to be held in abeyance in District Court 

pending the Supreme Court’s decision in Beckles v. United States, No. 15–8544, -- U.S. --, 2016 

WL 1029080 (U.S. June 27, 2016) (Mem.)). However, even assuming that it does, and assuming 

further that this action is timely,2 Petitioner cannot establish a basis for relief under Johnson. 

This is because Petitioner’s sentence did not involve the residual clause of § 4B1.2(a). 

See Bryant v. United States, No. 1:16-cv-688, 2016 WL 3251579, at *2 (W.D. Mich. June 14, 

2016) (neither Johnson nor Pawlak invalidate a petitioner’s sentence where the sentencing court 

did not rely on the residual clause to apply the career-offender enhancement); Garza v. United 

States, No. 16-12402, 2016 WL 3682911, at *2 (E.D. Mich. July 11, 2016) (career offender 

status predicated on prior controlled substance offense unaffected by Johnson); United States v. 

Massengill, No. 2:14-CR-46-ART-HAI-2, 2016 WL 4014996 (E.D. Ky. July 5, 2016) (Johnson

has no applicability where career offender status not based on residual clause); Russell v. United 

States, Nos. 4:09-cr-12-HAM-SKL, 4:13-cv-58-HSM, 2016 WL 3951144 (E.D. Tenn. July 19, 

2016) (Johnson does not apply where prior drug offenses support continued characterization as 

career offender under United States Sentencing Guidelines) (citing United States v. Jenkins, 613 

F. App’x 754, 755 (10th Cir. 2015) (deeming Johnson to be “irrelevant” where career offender 

enhancement based on prior drug offenses)); United States v. Fisher, No. 5:16-238-DCR, 2016 

WL 3906644, at *3 (E.D. Ky. July 14, 2016) (holding the same, and also concluding that the 

2255 motion is untimely under because Johnson does not apply). 

 2 See, e.g., United States v. Massengill, No. 2:14-CR-46-ART-HAI-2, 2016 WL 4014996, at *3–4 (concluding that § 

2255 motion is untimely where Johnson had no applicability to the petitioner’s career offender status under the 

United States Sentencing Guidelines).

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Petitioner’s career offender designation was based on his three prior convictions on 

controlled substance felony offenses exceeding one year of imprisonment. PreSentence 

Investigation Report, ¶¶39–41. The PreSentence Investigation Report indicates that, on August 

19, 1997, he was sentenced to two years imprisonment on aggravated trafficking in the Franklin 

County Court of Common Pleas in two separate cases, and on December 1, 2005, he was 

sentenced to 72 months imprisonment on conspiracy to distribute more than five grams of 

cocaine base in the United States District Court for the Southern District of Ohio. Id. ¶ 41. 

These offenses qualified him for career offender status under § 4B1.1, but not by operation of the 

residual clause of § 4B1.2(a)(2). Petitioner’s prior convictions met the definition of a controlled 

substance offense as set forth in § 4B1.2(b). Petitioner had a resulting total offense level of 31 

and criminal history of VI, with a resulting recommended guideline sentence of 188–235 

months. The probation officer recommended imposition of 204 months imprisonment. See

generally PreSentence Investigation Report. The District Court concluded that Petitioner’s 

career offender status overstated the seriousness of his criminal history, and departed to a 

criminal history category of V. The Court also granted the government’s motion for a downward 

departure under § 5K1.1, and imposed a sentence of 120 months imprisonment, well below 

Petitioner’s recommended sentence under the United States Sentencing Guidelines. (See Docs. 

33, 34). 

The record therefore makes clear that Petitioner’s status as a career offender relies on the 

basis of his prior controlled substance offense convictions under § 4B1.2(b), and not by 

operation of the residual clause. Johnson and Pawlak therefore have no applicability to his case 

and do not provide the relief Petitioner seeks. 

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Under these circumstances, “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). Because “it plainly 

appears . . . that the moving party is not entitled to relief, the judge must dismiss the motion.” 

Rule 4 of the Rules Governing Section 2255 Proceedings.

III. CONCLUSION

Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

Procedure on Objections

 If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 

106 S. Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: August 19, 2016 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

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