1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

No. 3:14-cr-00337-01-HZ

(3:16-cv-01327-HZ)

Plaintiff,

OPINION & ORDER

v.

EUGENE JAMES HOLBERT II,

Defendant.

Billy J. Williams 

United States Attorney 

Leah K. Bolstad 

Assistant United States Attorney 

U.S. Attorney’s Office, District of Oregon 

1000 SW Third Ave., Suite 600 

Portland, OR 97204

Attorneys for Plaintiff

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Case 3:14-cr-00337-HZ Document 133 Filed 11/28/16 Page 1 of 4
2 – OPINION & ORDER

Eugene James Holbert II

Fed. Reg. No. 76437-065

Federal Correctional Institution—La Tuna

P.O. Box 3000

Anthony, TX 79821

Pro Se Defendant

HERNÁNDEZ, District Judge:

Defendant Eugene James Holbert II brings a motion for relief under 28 U.S.C. § 2255,

alleging that his 120-month sentence was imposed in violation of the United States Constitution 

and must be vacated or set aside. Specifically, Defendant contends that the Supreme Court’s 

recent decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States, 

136 S. Ct. 1257 (2016) render his sentence unconstitutional. Because Johnson and Welch do not 

apply to Defendant’s case, the Court denies his motion.

BACKGROUND

On January 20, 2015, Defendant pled guilty to two counts of a Superseding Information: 

(1) Count 1—Conspiracy to Distribute Controlled Substances in violation of 21 U.S.C. §§ 

841(a)(1), 841(b)(1)(A), and 846; and (2) Count 3—Possession of a Firearm in Furtherance of 

Drug Trafficking in violation of 21 U.S.C. §§ 2 and 924(c). Tr. 51, 54. The Court held a 

sentencing hearing on May 4, 2015. Tr. 94. The Court sentenced Defendant to a 60-month 

sentence on Count 1, followed by a consecutive 60-month sentence on Count 3, all followed by a 

4-year term of supervised release, a forfeiture of $251,098 in U.S. currency, and a $200 fee 

assessment. Tr. 95. Judgment was entered on May 5, 2015. Id. Defendant did not appeal. 

Defendant filed the present Section 2255 motion pro se on June 28, 2016.

 

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3 – OPINION & ORDER

DISCUSSION

Defendant seeks to vacate his sentence based on his claim that Johnson renders 

18 U.S.C. § 924(c) unconstitutional. However, Johnson does not apply to Defendant’s case.

Defendant was convicted, in relevant part, under 18 U.S.C. § 924(c)(1)(A)(i), which 

provides for a mandatory minimum sentence for a person who possesses a firearm in furtherance 

of a “crime of violence” or a drug trafficking crime. Section 924(c)(3) goes on to define “crime 

of violence” as any “felony” that “has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another” (“use-of-physical-force clause”); or “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” (“residual clause”).

In Johnson, the Supreme Court held that language in the residual clause of 

§ 924(e)(2)(B)(ii), which defines a violent felony under the Armed Career Criminal Act (ACCA) 

was unconstitutionally vague. 135 S. Ct. at 2555. The Supreme Court then held, in Welch, that 

Johnson applied retroactively, effectively invalidating all past sentencing decisions that applied 

the ACCA mandatory minimum sentence based on convictions for violent felonies that could 

only be defined as such under the residual clause. 578 U. S. at 1.

Construing Defendant’s motion liberally, his argument appears to be that, because 

Johnson held that the residual clause was unconstitutional in the ACCA, then the similar residual 

clause in the statute under which Defendant was sentenced must also be unconstitutional. 

However, because Defendant was convicted of possessing a firearm in furtherance of a drug 

trafficking crime, not a “crime of violence,” the residual clause in § 924(c) played no role in 

Defendant’s sentence. Similarly, the fact that Johnson invalidated the residual clause found in 18 

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4 – OPINION & ORDER

U.S.C. § 924(e)(2)(B) has no impact on Defendant’s case. Therefore, Defendant’s argument is 

unavailing.

CONCLUSION

Defendant’s motion for relief under Section 2255 [125] is denied. The Supreme Court’s 

decisions in Johnson and Welch did not render Defendant’s sentence unconstitutional.

IT IS SO ORDERED.

Dated this day of , 2016.

 

MARCO A. HERNÁNDEZ

United States District Judge

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