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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos.: 3:01cr78/LAC/CJK

3:16cv300/LAC/CJK

HORACE VONCHE JORDAN,

Defendant.

______________________________/

REPORT AND RECOMMENDATION

Defendant Horace Vonche Jordan, by and through appointed counsel, has 

filed a “Corrected Motion to Correct Sentence under 28 U.S.C. § 2255.” (ECF No. 

240). The court stayed the case pending a decision in Beckles v. United States, 137

S. Ct. 886 (2017). (See ECF Nos. 245, 246, 248, 249). After the Beckles decision 

issued, the Government filed a response in opposition. (ECF No. 250). Defendant 

filed a reply. (ECF No. 257). After a review of the record, the undersigned has 

determined that the motion is untimely and should be dismissed. 

BACKGROUND and ANALYSIS

In August 2001, Defendant pleaded guilty to one count of conspiracy to 

possess with intent to distribute 500 grams or more of cocaine and five grams or 

more of cocaine base and two counts of possession with intent to distribute cocaine 
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in violation of 21 U.S.C. '' 841 and 846. (ECF No. 61). The court determined 

that Defendant should be sentenced as a career offender under United States 

Sentencing Guideline § 4B1.1(a) after adopting the findings of the Presentence 

Investigation Report (“PSR”) which included at least two prior felony convictions 

of a crime of violence or controlled substance offense, including a 1991 conviction 

for carrying a concealed weapon and attempted possession of a firearm during the 

commission of a felony and a 1991 conviction for attempted second degree murder 

and carrying a concealed firearm. (See ECF No. 258, PSR ¶¶ 54, 59, 60). The

PSR calculated a Guideline range of 262 to 327 months’ imprisonment based on a 

total offense level of 34 and a criminal history category of VI. (ECF No. 258, PSR 

¶ 83). On December 20, 2001, the court sentenced Defendant to 262 months’ 

imprisonment on each count to run concurrently, followed by a total of eight years 

of supervised release. (ECF No. 111). Defendant appealed, and on June 20, 

2002, his convictions and sentences were affirmed. (See ECF No. 163). 

Defendant did not file a petition for certiorari with the United States Supreme Court, 

and as such his judgment of conviction became final on the date on which his time 

for filing such a petition expired (i.e., ninety days after the entry of the court of 

appeals judgment). Thus, Defendant’s judgment of conviction became final on 
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September 18, 2002.

1

 In order to have been timely filed, his § 2255 motion had to 

be filed no later than one year from that date, or by September 18, 2003. Therefore, 

Defendant’s motion filed on June 24, 2016, is facially untimely.

2

 

In his motion, Defendant argues that he is entitled to a sentence reduction 

because his attempted second degree murder conviction is his only remaining 

predicate “crime of violence” offense after the Supreme Court’s decision in Johnson

v. United States, 135 S. Ct. 2551 (2015). (ECF No. 240 at 4-6). The Government 

argues that Defendant’s motion is untimely and Johnson does not apply to his career 

offender sentence. (ECF No. 250 at 3-5). The court will address Defendant’s

 

1 In 2008 and 2016, Defendant filed motions for reduction of sentence under 18 U.S.C. 

§ 3582(c)(2) based on Amendments 706 and 782. (ECF Nos. 187, 228). The court denied both 

motions. (ECF Nos. 188, 229). 

2 Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions under this 

section. The one-year period of time runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action 

in violation of the Constitution or laws of the United States is removed, if the petitioner 

was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if 

that right has been newly recognized by the Supreme Court and made retroactively 

applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been 

discovered through the exercise of due diligence.

28 U.S.C. § 2255. 
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motion to the extent necessary to explain why Johnson does not make his motion 

timely. 

Pursuant to the Armed Career Criminal Act, (“ACCA”), a person who has 

three previous convictions for a violent felony, a serious drug offense, or both is 

subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). 

The statutory definition of a “violent felony” under the ACCA includes an offense 

that either “(i) has as an element the use, attempted use, or threatened use of physical 

force against the person of another (known as the elements clause) or (ii) is burglary, 

arson, or extortion, involves the use of explosives (known as the enumerated 

offenses clause) or otherwise involves conduct that presents a serious potential risk

of physical injury to another (known as the residual clause).” 18 U.S.C. § 

924(e)(2)(B)(i) and (ii). An individual subject to ACCA’s enhanced penalties also 

is subject to a greater guidelines range pursuant to U.S.S.G. § 4B1.4. In Johnson, 

the Supreme Court ruled that the ACCA’s “residual clause” was unconstitutionally 

vague. Johnson, 135 S. Ct. at 2563. Thus, a prior conviction can only qualify as 

a “violent felony” if it falls within the elements clause or is one of the enumerated 

offenses. The Supreme Court has held that Johnson announced a new substantive 
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rule that applies retroactively to cases on collateral review. Welch v. United States, 

136 S. Ct. 1257, 1264-65 (2016). 

Defendant argues the Johnson reasoning that invalidated the ACCA’s residual 

clause on vagueness grounds should extend to and invalidate the residual clause of 

the advisory Guidelines’ definition of a “crime of violence.” (ECF No. 240 at 5-

6). See U.S.S.G. § 4B1.2(a). Defendant acknowledges Eleventh Circuit 

precedent in United States v. Matchett, 802 F.3d 1185, 1194-96 (11th Cir. 2015) 

(holding that the Sentencing Guidelines cannot be challenged as unconstitutionally 

vague), but disagrees with the reasoning of the decision. The Government 

responds correctly that Defendant’s argument is foreclosed by the Supreme Court’s 

recent decision in Beckles, supra, in which the Court held that the advisory 

Guidelines are not subject to vagueness challenges under the Due Process Clause 

because they merely guide the exercise of a court’s discretion in choosing an 

appropriate sentence within the statutory range (see ECF No. 250 at 4 (citing 

Beckles, 137 S. Ct. at 892)). The ACCA’s residual clause, on the other hand, fixed 

in an impermissibly vague way a higher range of sentences for certain defendants 

which implicated “concerns underlying vagueness doctrine—providing notice and 

preventing arbitrary enforcement.” Beckles, 137 S. Ct. at 894. 
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In reply, Defendant argues that the Court in Beckles did not address whether 

Johnson applies to sentences, like his, imposed when the Guidelines were 

mandatory. (ECF No. 257 at 3-7). The Government argues that this court is 

bound by circuit precedent holding that the Guidelines, even when mandatory, 

cannot be unconstitutionally vague. See In re Griffin, 823 F.3d 1350, 1354 (11th 

Cir. 2016). (ECF No. 250 at 5). The Griffin panel explained:

For the following reasons, the logic and principles established in Matchett, 

also govern our panel as to Griffin's guidelines sentence when the Guidelines 

were mandatory.

The Guidelines—whether mandatory or advisory—cannot be 

unconstitutionally vague because they do not establish the illegality of any 

conduct and are designed to assist and limit the discretion of the sentencing 

judge. Id. at 1195. The limitations the Guidelines place on a judge's discretion 

cannot violate a defendant's right to due process by reason of being vague. 

The Guidelines do not define illegal conduct: they are directives to judges for 

their guidance in sentencing convicted criminals, not to citizens at large. Id. 

at 1195–96. Due process does not mandate notice of where, within the 

statutory range, the guidelines sentence will fall.

Indeed, a defendant's due process rights are unimpaired by the complete 

absence of sentencing guidelines. The Constitution does not require 

sentencing guidelines in noncapital cases. Id. at 1194. Because there is no 

constitutional right to sentencing only under guidelines, the limitations the 

Guidelines place on a judge's discretion cannot violate a defendant's right to 

due process by reason of being vague. Id. at 1194–95. Before Congress 

enacted the Guidelines, the federal government had indeterminate sentencing. 

Id. at 1195. Even vague guidelines cabin discretion more than no guidelines 

at all.
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Griffin, 823 F.3d at 1354-55. Defendant acknowledges Griffin, but disagrees that 

it is persuasive or controlling, particularly in light of Beckles, decided after Griffin, 

which reaffirmed that the void for vagueness doctrine applies to “laws that fix the 

permissible sentences for criminal offenses.” (ECF No. 257 at 11 (citing Beckles, 

137 S. Ct. at 892 (emphasis in original)); see also United States v. Booker, 543 U.S. 

220 (2005) (rendering the Sentencing Guidelines effectively advisory). Defendant 

points out that after Booker, “[t]he due process concerns that . . . require notice in a 

world of mandatory Guidelines no longer apply.” (ECF No. 257 at 5-6 (citing 

Beckles, 137 S. Ct. at 894 (quotation marks and citation omitted)). Defendant 

argues that the court sentenced him at the minimum Guideline sentence which 

“strongly suggests” that the court would not have imposed a Guideline sentence if it 

had not been mandatory. (ECF No. 257 at 3). Defendant argues also that Griffin

was decided in the context of an application for leave to file a second or successive 

§ 2255 motion, which should not bind this court when considering an initial § 2255 

motion. (Id. at 13-14). Finally, Defendant requests a certificate of appealability 

if relief is denied under Griffin.

This undersigned finds that Griffin, and the circuit court cases citing Griffin, 

are binding on this court. See In re Anderson, 829 F.3d 1290, 1292-94 (11th Cir. 
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2016) (noting that in light of the precedents in Matchett and Griffin, Anderson failed 

to make a prima facie showing that he is entitled to file a successive § 2255 motion); 

In re Sams, 830 F.3d 1234, 1240 (11th Cir. 2016) (“[O]ur precedent holds that Welch

does not make Johnson retroactive for purposes of filing a successive § 2255 motion 

raising a Johnson-based challenge to the Sentencing Guidelines.”); see also In re 

Sapp, 827 F.3d 1334, 1336 (11th Cir. 2016) (in which the panel disagreed with 

Griffin, but acknowledged that it was bound by its precedent in the context of 

mandatory Sentencing Guidelines). Accordingly, Defendant’s challenge to his 

career offender sentence enhancement as imposed under the then-mandatory 

Sentencing Guidelines must fail.

CONCLUSION

Because Defendant’s conviction became final years ago and Johnson does not 

apply to his career offender sentence, his motion is untimely under § 2255(f)(1) and 

should be dismissed. 

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing § 2255 Proceedings provides that “[t]he 

district court must issue or deny a certificate of appealability when it enters a final 

order adverse to the applicant,” and if a certificate is issued “the court must state the 
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specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 

A timely notice of appeal must still be filed, even if the court issues a certificate of 

appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial 

of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 

(2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is 

also recommended that the court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final 

order, the court may direct the parties to submit arguments on whether a certificate 

should issue.” If there is an objection to this recommendation by either party, that 

party may bring this argument to the attention of the district judge in the objections 

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s Corrected Motion to Correct Sentence under 28 U.S.C. 

§ 2255, ECF No. 240, be DENIED to the extent he seeks relief based on the 

Supreme Court’s decision in Johnson and otherwise DISMISSED as untimely.

2. A certificate of appealability be DENIED.
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At Pensacola, Florida, this 28th day of September, 2017.

/s/ Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Objections to these proposed findings and recommendations must be filed 

within fourteen (14) days after being served a copy thereof. Any different 

deadline that may appear on the electronic docket is for the court’s internal 

use only, and does not control. A copy of objections shall be served upon all 

other parties. If a party fails to object to the magistrate judge's findings or 

recommendations as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal the 

district court's order based on the unobjected-to factual and legal conclusions. 

See 11th Cir. Rule 3-1; 28 U.S.C. § 636.