United States District Court, E.D. Michigan, Southern Division
PRESENT: Honorable Gerald E. Rosen United States District
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE HIS SENTENCE
E. Rosen United States District Judge.
judgment entered on September 10, 2013, Petitioner Deandra
Sherman Mosby was sentenced to a 120-month term of
imprisonment following his plea of guilty to a charge of
possession of a stolen firearm in violation of 18 U.S.C.
§ 922(j). In his Rule 11 plea agreement, Petitioner
acknowledged that he did not dispute the U.S. Sentencing
Guidelines calculations set forth in this agreement and its
accompanying worksheets, and the agreement, in turn, provided
that this calculation resulted in a sentencing
“range” of 120 months' imprisonment, which
was determined by the ten-year statutory maximum for a
violation of 18 U.S.C. 922(j). See 18 U.S.C. §
the present motion brought under 28 U.S.C. § 2255 and
filed on April 27, 2016,  Petitioner now seeks to vacate his
sentence as contrary to the Supreme Court's recent
decision in Johnson v. United States, ___ U.S. ___,
135 S.Ct. 2551 (2015), as well as more recent Sixth Circuit
rulings that have applied Johnson to career offender
provisions in the Sentencing Guidelines, see, e.g.,
United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016).
More recently, Petitioner moved to stay these proceedings
pending the Supreme Court's decision in Beckles v.
United States, No. 15-8544, cert. granted, 136
S.Ct. 2510 (2016), which promises to address the question
whether the ruling in Johnson invalidating the
residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
applies to the identically-worded residual clause in §
4B1.2(a)(2) of the Sentencing Guidelines. In response to
Petitioner's two motions, the Government argues (rather
inconsistently) that the stay requested by Petitioner should
be granted, but that Petitioner is not entitled to sentencing
relief under Johnson or its progeny. The Court
agrees with the second of these contentions, and thus finds
that a stay is unwarranted because Petitioner's §
2255 may readily be resolved on the merits.
observed by the Government, neither the ruling nor the
reasoning of Johnson is applicable here, since
Petitioner was not sentenced as an armed career criminal
under the ACCA or as a career offender under any of the
relevant sentencing guidelines. To the contrary, by agreeing
to plead guilty to a charge of possession of a stolen firearm
in violation of 18 U.S.C. § 922(j) - as opposed to the
felon-in-possession offense charged in the original
indictment - Petitioner avoided the prospect of an enhanced
sentence under the ACCA. Similarly, because a violation of 18
U.S.C. § 922(j) is subject to a 10-year statutory
maximum sentence, see 18 U.S.C. § 924(a)(2),
Petitioner avoided any possibility of an increased sentencing
range pursuant to one of the career offender provisions in
the Guidelines. Accordingly, regardless of any Sixth Circuit
rulings applying the reasoning in Johnson to
provisions in the Sentencing Guidelines, and regardless of
the Supreme Court's forthcoming ruling in
Beckles, Petitioner cannot establish an entitlement
to sentencing relief based on any existing or future decision
addressing the validity of the ACCA or the career offender
provisions in the Guidelines.
these reasons, NOW, THEREFORE, IT IS HEREBY ORDERED that
Petitioner's April 27, 2016 motion under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence (docket
#28) is DENIED. IT IS FURTHER ORDERED that Petitioner's
July 15, 2016 motion to stay these proceedings (docket #36)
also is DENIED.
IT IS FURTHER ORDERED that, in the event that Petitioner
might seek to appeal any of the Court's rulings in the
present order, a certificate of appealability should be
DENIED as to each claim asserted in Petitioner's §
2255 motion, where (i) Petitioner has failed to make a
substantial showing of the denial of a constitutional right,
and (ii) the Court's determination as to the
unavailability of § 2255 relief is not reasonably open
to debate under the facts presented here.
Petitioner subsequently sought leave to
amend his initial petition, and the Court granted this
request in a July 19, 2016 order.
The Government further observes that
Johnson's ruling as to the residual clause of
the ACCA applies only to prior convictions that previously
were treated as “violent felonies” under that
clause. Petitioner's prior convictions, in contrast, were
for drug offenses, and Johnson ...