IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 12-0056-WS

 )

REGINALD MARTEZ ROBINSON, )

 )

Defendant. )

ORDER

The defendant has filed a motion for appointment of counsel to assist him in seeking 

relief under Johnson v. United States, 135 S. Ct. 2551 (2015). (Doc. 247). The Johnson Court

“h[e]ld that imposing an increased sentence under the residual clause of the Armed Career 

Criminal Act [“ACCA”] violates the Constitution’s guarantee of due process.” Id. at 2563.

The defendant was not sentenced under ACCA, but he was sentenced as a career 

offender. To be a career offender, a defendant must “ha[ve] at least two prior felony convictions 

of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). As under 

ACCA, the Guidelines define a “crime of violence” in three ways: (1) a crime having as an 

element the use or attempted use of force (the “elements” clause); (2) the crimes of burglary of a 

dwelling, arson or extortion (the “enumerated” clause); and (3) any other crime that “otherwise 

involves conduct that presents a serious potential risk of physical injury to another” (the 

“residual” clause). Id. § 4B1.2(a). 

The Johnson Court ruled only that the “residual” clause of ACCA is unconstitutional. 

The defendant can have no hope of relief unless both: (1) the Johnson rule extends to the career 

offender guideline; and (2) he was characterized as a career offender as a result of counting 

offenses that are crimes of violence only under the residual clause. 

The Eleventh Circuit has ruled that Johnson does not extend to the career offender 

guideline. United States v. Matchett, 802 F.3d 1185, 1189 (11th Cir. 2015). The Supreme Court 

has granted a petition for writ of certiorari in another case to resolve that very question. Beckles 

v. United States, 136 S.Ct. 2510 (2016). The first issue listed above thus appears to remain an 

open question.

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The second, however, is not. When sentenced, the defendant had four prior adult1 felony 

convictions: (1) distribution of a controlled substance; (2) possession with intent to distribute 

crack cocaine; (3) first degree robbery; and (4) conspiracy to commit bank robbery. (Doc. 239 at 

17-19). The first two of these offenses are controlled substance offenses. Because a defendant 

is a career offender if he has two prior controlled substance offenses, the defendant was correctly 

deemed a career offender regardless of whether his other two offenses fall within the residual 

clause. Moreover, first degree robbery under Alabama law is a crime of violence under the 

elements clause, not under the residual clause. Levert v. United States, 2016 WL 4070147 at *4 

(N.D. Ala. 2016).

Because the defendant’s career offender status was not based on a prior felony conviction 

for a crime of violence under the residual clause, he cannot possibly benefit from Johnson, even 

if the Supreme Court ultimately declares that Johnson applies to the career offender guideline. 

Because the defendant cannot obtain any relief from Johnson, his motion for appointment of 

counsel to pursue such a claim is denied.

DONE and ORDERED this 12th day of September, 2016.

s/WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 1 Only convictions for crimes committed after the defendant turned 18 can be counted for 

purposes of the career offender guideline. U.S.S.G. § 4B1.1(a).

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