USA v. Godbold

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA RESPONDENT
vs. Criminal No. 6:13-cr-60024
Civil No. 6:16-cv-06115
TYRONG GODBOLD MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Movant is Tyrong Godbold (“Godbold”) who is proceeding pro se. On November 7, 2016,
Godbold filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. ECF No.
57. After being directed by the Court to respond, the Government filed a response to this Motion.
ECF No. 66.
The Motion was referred for findings of fact, conclusions of law, and recommendations for
the disposition of the case. The Court has reviewed the Motion and the response; and based upon
that review, the Court recommends this Motion be DENIED.
1. Procedural Background:
On April 24, 2013, Godbold was named in a four-count Indictment returned by the Grand
Jury for the Western District of Arkansas. ECF No. 1. Count One of the Indictment charged that
on or about August 29, 2012 in the Western District of Arkansas, Hot Springs Division, Tyrong
Godbold knowingly and intentionally distributed a controlled substance, namely, cocaine base,
commonly known as crack cocaine, a Schedule II controlled substance, in violation of Title 21 of
the United States Code (U.S.C.) § 841(a)(1).
Count Two charged that on or about September 24, 2012, Tyrong Godbold knowingly and
intentionally distributed a controlled substance, namely, cocaine base, in violation of 21 U.S.C. §
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841(a)(1). Count Three charged that on or about October 17, 2012, Tyrong Godbold knowingly and
intentionally distributed a controlled substance, namely, cocaine base, in violation of 21 U.S.C. §
841(a)(1). Count Four charged that on or about October 22, 2012, Tyrong Godbold knowingly and
intentionally distributed a controlled substance, namely, cocaine base, in violation of 21 U.S.C. §
841(a)(1).
On June 24, 2013, notice was given that attorney Willard Proctor, Jr. had been retained to
represent Godbold replacing James B. Pierce who had been appointed on June 13, 2013. ECF Nos.
9, 15. On August 13, 2014, a Superseding Indictment was returned by the Grand Jury for the
Western District of Arkansas charging Godbold with 18 counts of distributing “crack cocaine” and
1 count of distributing cocaine on various dates from August 12, 2012 through October 29, 2012.
ECF No. 33.
On December 9, 2014, Godbold appeared in the United States District Court for the Western
District of Arkansas with counsel Willard Proctor, Jr. for a change of plea before the Honorable
Susan O. Hickey, United States District Judge. ECF No. 41. A written plea agreement was
presented to the Court that set forth that Godbold would agree to plead guilty to Count Thirteen of
the Superseding Indictment charging him with distributing cocaine base on or about September 24,
2012. ECF No. 42 ¶ 1. The Parties agreed that a reasonable and appropriate sentence would be 108
months and agreed to jointly recommend this sentence to the Court; however, both Parties
acknowledged the recommendation was non-binding on the Court and the Court could sentence
Godbold to any term up to 20 years. ECF No. 42 ¶ 11. The Court tentatively approved the Plea
Agreement and ordered a Presentence Investigation Report (PSR) be completed the United States
Probation Office (USPO).
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Based on the United States Sentencing Guidelines (USSG), the PSR found a base offense
level of 22 because Godbold’s offense involved at least 22.4 grams but less than 28 grams of cocaine
base. ECF No. 46 ¶ 26. However, because Godbold had at least two prior felony convictions of
either a crime of violence or a controlled substance offense he was determined to be a career offender
pursuant to USSG §4B1.1 and his offense level was adjusted to level 32. ECF No. 46 ¶ 32.
Godbold’s total criminal history score of 22 established his criminal history category as VI (ECF No.
46 ¶ 86). Additionally, his criminal history category would be VI as a career offender pursuant to
USSG §4B1.1(b). ECF No. 46 ¶ 87. Godbold’s maximum statutory term of imprisonment was
20 years. ECF No. 46 ¶ 134. After receiving three levels off for acceptance of responsibility,
Godbold’s total offense level was determined to be 29. ECF No. 46 ¶¶ 33-35. Because Godbold was
determined to be a career offender Based upon a total offense level of 29 and a criminal history
category of VI, Godbold’s guideline imprisonment range was 151 to 188 months. ECF No. 46 ¶1
135.
On March 16, 2015, Godbold filed objections to the PSR including an objection stating he
was not a career offender. ECF No. 46-1, Obj. No. 5. In its response to the objection, the USPO
responded that Godbold had prior convictions for Aggravated Assault and Battery 1 Degree, whichst
are crimes of violence, as well as for Distribution of Cocaine, which is a controlled substance
offense. ECF No. 46-1, Obj. No. 5 Response.
On April 6, 2015, Godbold filed a sentencing memorandum in which he requested the Court
to depart from the Guidelines range. ECF No. 48. Beside outlining Godbold’s alcohol and
substance abuse problems to deal with his inner struggles, he referenced that the Parties, in the Plea
Had Godbold not been a career offender his USSG range of punishment would have been 63-	1
78 months imprisonment based on a total offense score of 19 and criminal history category VI.
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Agreement, jointly recommended a 9-year sentence and argued such a sentence would afford an
adequate deterrence to criminal conduct and would protect the public from future crimes. Id.
On November 10, 2015, Godbold appeared with counsel for sentencing. ECF No. 49. At
sentencing, the Court addressed Godbold’s objections to the PSR. As to Godbold’s objection
regarding his career offender status, the Court disagreed finding he had a prior felony conviction for
controlled substance and that his aggravated assault was a crime of violence. ECF No. 53 at 11-13.
After making this determination, the Court allowed Godbold, through counsel, to elaborate his
argument that his aggravated assault offense should not be counted as a violent felony because it fell
under the recklessness provision of the statute. Id. at 14-16. However, the Court disagreed, finding
that based on the amended information he was charged with stated his conduct was purposeful and,
as such, it did not fall under the reckless portion of the statute. Id. at 16-17.
In sentencing Godbold, the Court stated it believed his USSG guideline range of 151 to 188
months was greater than necessary to reflect the 3553 factors and agreed that the Parties’
recommended sentence of 108 months was appropriate. ECF No. 53 at 3. The Court imposed the
108-month sentence with credit for time served and to run concurrent with any state sentence, 3 years
supervised release, and $100 special assessment. ECF No. 50.
On November 7, 2016, Godbold filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody. ECF No. 57. The Court directed the
Government to file its response by February 3, 2017. ECF No. 62. The Government responded on
February 1, 2017. ECF No. 66. Godbold was appointed counsel to assist him this matter. ECF No.
61. On March 10, 2017, appointed counsel filed his notice saying no further briefing was needed
in this case. ECF No. 69. This Motion is now ripe for consideration.
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2. Applicable Law:
A § 2255 motion is fundamentally different from a direct appeal. The Court will not
reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255.
See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571,
572 (8th Cir.1992) ( “Claims which were raised and decided on direct appeal cannot be relitigated
on a motion to vacate pursuant to 28 U.S.C. § 2255 .”).
“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would
result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.
1996).
3. Discussion:
In the present Motion, Godbold raises four separate claims. ECF No. 57. However, each of
these claims relate to his main argument that he was improperly sentenced as a “career offender”
under USSG § 4B1.1. Thus, the Court will only address this issue.
Specifically, Godbold argues the provision for sentencing a “career offender,” based on a
“crime of violence” defined by USSG § 4B1.2(a), is unconstitutional pursuant to Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015). In Johnson, the United States Supreme Court held that
imposing an increased sentence under the residual clause of the Armed Career Criminal Act
(“ACCA”) violates the Constitution’s guarantee of due process and was invalid under the “void for
vagueness” doctrine. Id. at 2563. According to Godbold, this rule would also apply to the definition
of “crime of violence” provision in USSG § 4B1.2(a). Upon review, the Court finds Godbold is
not entitled to relief, and the “crime of violence” provision of the USSG is not unconstitutional under
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Johnson.
The United States Supreme Court directly addressed this very issue in a recent opinion. In
Beckles v. United States the Supreme Court expressly held:
Because they merely guide the district courts' discretion, the Guidelines are not
amenable to a vagueness challenge. As discussed above, the system of purely
discretionary sentencing that predated the Guidelines was constitutionally
permissible. If a system of unfettered discretion is not unconstitutionally vague, then
it is difficult to see how the present system of guided discretion could be.
. . .
Because the advisory Sentencing Guidelines are not subject to a due process
vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness.
Beckles, 137 S. Ct. 886, 894 and 897 (2017). The USSG are not subject to challenge based on
Johnson.
Thus, based upon this opinion, the Court cannot find any of Godbold’s claims have merit.
Indeed, he cannot claim his counsel was ineffective because he failed to object at sentencing to his
“career offender” designation when such an objection would have been without merit under Beckles.
See Dodge v. Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010) (recognizing a counsel’s failure to raise
meritless issues does not constitute ineffective assistance of counsel). Furthermore, the Court did
not error when sentencing Godbold as a “career offender” under this provision because, under
Beckles, such sentencing was entirely proper. Finally, Godbold’s claim that his waiver of a 28
U.S.C. § 2255 motion was not voluntary is irrelevant because his this 28 U.S.C. § 2255 motion has
no merit.
4. Recommendation:
Accordingly, based on the foregoing, the Court recommends the instant Motion (ECF No.
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66) be DENIED and dismissed with prejudice. The Court further recommends no Certificate of2
Appealability issue in this matter.
The Parties have fourteen (14) days from receipt of this Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The Parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court. See Thompson v. Nix, 897 F.2d 356, 357 (8 Cir. 1990).th
DATED this 21 day of September 2017.ST
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
"A federal court may dismiss a claim without an evidentiary hearing where the allegations	2
are frivolous, where the allegations fail to state a constitutional claim, where the relevant facts are not
in dispute, or where the dispute can be resolved on the basis of the record." Urquhart v. Lockhart, 726
F.2d 1316, 1318-19 (8th Cir.1984).
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