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United States v. Walker

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

January 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL WALKER, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (DKT. 25)

          MARK A. GOLDSMITH United States District Judge

         Defendant 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.

         I. BACKGROUND

         Defendant 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.

         Defendant 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 8.

         II. ANALYSIS

         A. Retroactivity

         The 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 rule. Id.

         But the 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 non-retroactivity argument.

         B. Felonious Assault is a Crime of Violence

         This 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 retroactively stricken.

         The 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 ...

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