Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Snow v. United States

United States District Court, E.D. Michigan, Northern Division

November 17, 2016

ANTHONY TYRONE SNOW, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CIVIL No. 16-CV-11510

          DISTRICT JUDGE THOMAS L. LUDINGTON

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE AS SUPPLEMENTED (Docs. 26, 41)

          Patricia T. Morris United States Magistrate Judge

         I. RECOMMENDATION

         For the following reasons, IT IS RECOMMENDED that Petitioner's Motion (Docs. 26, 41) be DENIED; and that the civil case be DISMISSED.

         II. REPORT

         A. Introduction

         On October 21, 2013, Petitioner pled guilty to Count 1 of the Information charging him with distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. 14.) On March 25, 2014, judgment was entered and Petitioner was sentenced to 140 months incarceration. (Doc. 23.) Petitioner did not file any appeal. On April 25, 2015, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Doc. 26.) On November 14, 2016, Petitioner's motion to vacate or reopen was construed as a motion to supplement his § 2255 motion and that motion was granted. (Doc. 43, 44.) Therefore, the court considers both his original motion and the motion as supplemented as one motion to vacate sentence. This motion has been referred to the undersigned by order of reference from United States District Judge Thomas L. Ludington. (Docs. 29, 43.) Respondent filed a response (Doc. 36); thus, these motions are ready for Report and Recommendation without oral argument. See E.D. Mich. LR 7.1(f)(2).

         B. Analysis and Conclusion

         Petitioner's sole asserted ground for relief is the decision of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015) and its progeny. (Docs. 26, 41.) In Johnson, the Supreme Court held that the Armed Career Criminal Act's (ACCA's) residual clause, i.e., the clause that defines a “violent felony” to include an offense that “involves conduct that presents a serious potential risk of physical injury to another” is unconstitutionally vague and violates due process. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has further held that Johnson has retroactive effect in cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         The Sixth Circuit has held that since the United States Sentencing Guidelines (USSG) § 4B1.1 (career offender enhancement) also has a residual clause that is identical in wording to the residual clause in the ACCA, the Johnson rationale applies equally to the sentencing guidelines residual clause defining a crime of violence. USSG § 4B1.2(a); United States v. Pawlak, No. 15-3566, 2016 WL 2802723, at *8 (6th Cir. Mar. 13, 2016).

         The United States Supreme Court has granted certiorari in a case which will answer at least two questions: (1) whether the holding in Johnson v. United States, 135 S.Ct. 2551 (2015) applies to the residual clause of the career offender guidelines rendering the clause unconstitutionally vague, and if so, (2) whether the determination of unconstitutionality should apply retroactively on collateral review. The Sixth Circuit recognizes that the United States Supreme Court in Beckles may disagree with its decision in Pawlak; thus, the Sixth Circuit has instructed district courts, on remand, to hold the §2255 motions in abeyance pending a decision in Beckles. E.g., In Re Embry, 831 F.3d 377 (6th Cir. 2016); In Re Patrick, 833 F.3d 584 (6th Cir. 2016).

         However, none of these enfolding sea-changes are of any value to Petitioner because Petitioner was sentenced as a career offender under § 4B1.1 because he had two prior controlled substance convictions, not because he had committed a prior crime of violence under the residual clause as defined in § 4B1.2(a). (Doc. 14 at ¶ 35, 37; Doc. 36 at 166-67.)

         Therefore, Johnson and its progeny provide no avenue for sentencing relief for Petitioner. I therefore suggest that Petitioner's motion (Doc. 26, 41) be denied.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.