United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
VACATE SENTENCE UNDER 28 U.S.C. § 2255 (DKT.
A. GOLDSMITH United States District Judge
filed a motion to vacate and correct his sentence pursuant to
28 U.S.C. § 2255 and Johnson v. United States,
135 S.Ct. 2551 (2015). See generally Def. Mot. (Dkt.
25). Defendant claims that Johnson's analysis of
the Armed Career Criminal Act extends to the Sentencing
Guidelines, and operates retroactively, such that his
sentence was impermissibly enhanced. The Government responded
on August 17, 2016 (Dkt. 31). For the reasons set forth
below, Defendant's motion is denied.
pleaded guilty to being a felon in possession of a stolen
firearm in violation of 18 U.S.C. § 922(g), and judgment
entered against him on March 10, 2015 (Dkt. 24).
Defendant's Guidelines range was 92 to 115 months, and he
was sentenced to 60 months in prison. See Def. Mot.
at 8. Defendant's Guidelines range was enhanced, in part,
based on the conclusion that he had committed two prior
felony crimes of violence, in the form of two prior
convictions for felonious assault. Id. at 1.
argues that his prior sentences for felonious assault should
not have been deemed “crimes of violence, ”
because the crime can only be defined as a crime of violence
under the Guidelines' unconstitutional “residual
clause, ” U.S.S.G. § 4B1.2(a)(2). If those prior
convictions were not crimes of violence, says Defendant, his
proper Guidelines range “would have been 63 to 78
months in prison instead of the 92 to 115 month range upon
which his 60 month sentence was imposed.” Def. Mot. at
Government argues that, even accepting that Johnson
applies to the Guidelines, see United States v.
Pawlak, 822 F.3d 902 (6th Cir. 2016), it does not do so
retroactively. See Gov't Resp. at 3-6. Because
Defendant was sentenced before Johnson issued,
argues the Government, he cannot benefit from its prospective
Sixth Circuit has foreclosed this argument. In establishing
that the defendant had made a prima facie case that entitled
him to file a second § 2255 motion, the Sixth Circuit
unequivocally concluded that “[t]he Supreme Court's
rationale in Welch [v. United States, 136 S.Ct. 1257
(2016)] for finding Johnson retroactive [to the
ACCA] applies equally to the Guidelines.” In re
Patrick, 833 F.3d 584, 588 (6th Cir. 2016). Although the
Supreme Court may explain that this conclusion was in error,
it remains binding upon this Court until that happens.
Accordingly, the Court rejects the Government's
Felonious Assault is a Crime of Violence
brings us to the merits of the motion: whether
Defendant's prior felonious assault conviction still
would qualify as a “crime of violence, ” now that
the Guidelines' “residual clause” has been
Guidelines' invalidated residual clause includes, as the
basis of a sentence enhancement for felon in possession of a
firearm, any felony that “involves conduct that
presents a serious potential risk of physical injury to
another.” See U.S.S.G. § 4B1.2. The
remainder of the definition of “crime of
violence” remains in force:
[A]ny crime punishable by imprisonment for a term exceeding
one year . . . that -
(i) has as an element the use, attempted use, or threatened
use of physical force against the ...