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United States v. McClendon

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

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LAMALL MCCLENDON, Defendant.

          OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE [17]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE

         In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. In United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016), the Sixth Circuit extended Johnson to invalidate the residual clause of the “crime of violence” definition set forth in § 4B1.2(a)(2) of the Sentencing Guidelines. After Johnson but before Pawlak, Defendant Lamall McClendon was sentenced subject to an enhancement under § 2K2.1(a)(4)(A), which, at the time of McClendon's sentencing, provided that a defendant who commits an unlawful weapons possession offense with one prior conviction of either a “crime of violence” or a controlled substance offense will be given a base offense level of 20. This provision used the “crime of violence” definition from § 4B1.2(a)(2). McClendon says that the predicate offense the Court used to make this determination (his prior Michigan conviction for felonious assault) no longer qualifies as a “crime of violence” after Johnson and Pawlak-and therefore asks this Court to vacate his sentence.[1] He also says that his counsel was ineffective for failing to object to the application of 2K2.1(a)(4)(A) during sentencing.

         I.

         McClendon was arrested in March 2015 pursuant to a criminal complaint charging him with possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The indictment issued on March 18, 2015. (R. 8.)

         McClendon pled guilty to count two of the indictment, which charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). (R. 11, PID 25.) The plea agreement estimated a total offense level of 25 and a criminal history category of II, which resulted in an estimated guidelines range of 63 to 78 months. Contributing to both of these estimates was McClendon's February 2013 conviction under Michigan's assault-with-a-dangerous-weapon statute. (R. 11, PID 41.) Specifically, U.S.S.G. § 2K2.1(a)(4)(A) provides for a base offense level of 20 for a defendant who commits an unlawful weapons possession offense with one prior conviction of either a “crime of violence” or a controlled substance offense.

         After McClendon's guilty plea, the probation officer discovered two additional convictions for domestic violence. Thus, the Presentence Report calculated an additional two criminal history points, U.S.S.G. § 4A1.1(c), a total criminal history score of five, and a criminal history category of III. The base offense level remained the same as in the Rule 11 plea agreement. There were no objections to the Presentence Report-including the calculation of the base offense level of 20 under § 2K2.1(a)(4)(A). The Court accepted the Presentence Report determinations of the total base offense level (25) and criminal history (III) and, as a result, calculated McClendon's advisory guidelines range at 70 to 87 months. The Court imposed a sentence of 70 months on August 20, 2015. (R. 16, PID 93.) Appointed counsel represented McClendon throughout the course of the proceedings, including sentencing. (R. 4.)

         Pursuant to the plea agreement, McLendon waived his right to file a direct appeal. Instead, he filed this pro se collateral appeal to vacate his sentence. (R. 17.)

         II.

         28 U.S.C. § 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         To prevail under this section, a prisoner must demonstrate “a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Specifically, “the movant must allege as a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'”Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).

         The primary issue in this motion is whether Michigan's assault with a dangerous weapon statute is still a “crime of violence” after the Supreme Court's ruling in Johnson. When the Court sentenced McClendon, it applied U.S.S.G. § 2K2.1(a)(4)(A). That section provided, in relevant part, that a sentencing court should apply a base offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense[.]” U.S.S.G. § 2K2.1(a)(4)(A). “‘Crime of violence' [had] the meaning given that term in §4B1.2(a) and Application Note 1 of the Commentary to §4B1.2.” Commentary to U.S.S.G. § 2K2.1(a)(4)(A).

         Therefore, at the time of sentencing,

The term “crime of violence” mean[t] any offense under federal or state law, punishable by imprisonment for a ...

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