United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (Doc.
COHN UNITED STATES DISTRICT JUDGE
a criminal case. In 2004, defendant was indicted on a charge
of bank robbery, in violation of 18 U.S.C. § 2113(a). A
First Superseding Indictment later added a count of felon in
possession, in violation of 18 U.S.C. § 922(g)(1).
Defendant proceeded to trial on both counts. A jury found him
guilty as charged. In 2007, defendant was sentenced to 24
months on the bank robbery count, which was subject to an
enhancement under the career offender guideline provisions.
Defendant was also sentenced to a mandatory minimum 180 month
consecutive sentence, under 18 U.S.C. § 924(e)(1), as a
result of his armed career criminal status.
the Court is defendant's motion to vacate under 28 U.S.C.
§ 2255 in light of Johnson v. United States,
135 S.Ct. 2551 (2015). (Doc. 113). The government as filed a
response (Doc. 118) and supplemental response (Doc. 119),
contending that the motion should be denied for lack of
merit. The Court agrees. The reasons follow.
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 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."
prevail under § 2255, Petitioner must show a
“fundamental defect which inherently results in a
complete miscarriage of justice." U.S. v.
Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v.
U.S., 368 U.S. 424, 428 (1962)).
seeks relief under based on the new, retroactively applicable
right recognized by the Supreme Court in Johnson v.
United States, 135 S.Ct. 2551 (2015). In
Johnson, 135 S.Ct. 2551 (2015), the Court held that
the residual clause of the Armed Career Criminal Act, 18
U.S.C. §924(e)(2)(B)(ii), which defines the term
“violent felony” to include an offense that
“involves conduct that presents a serious potential
risk of physical injury to another, ” is
unconstitutionally vague. In Welch v. United States,
136 S.Ct. 1257 (2016), the Supreme Court held that
Johnson announced a substantive rule of
constitutional law that applies retroactively to ACCA cases
on collateral review.
to the extent defendant challenges his career offender
designation under the sentencing guidelines based on
Johnson, i.e. vagueness, he cannot prevail. The
Supreme Court has held that the sentencing guidelines are
“not amenable to vagueness challenges.”
Beckles v. United States, 137 S.Ct. 886, 894 (2017).
As a result, the Johnson decision does not provide a
basis for vacating, setting aside, or correcting
defendant's career offender designation under Section
defendant argues that his prior convictions for bank robbery
(federal), assaulting a federal officer, as well as the
instant bank robbery conviction, were not crimes of violence,
under U.S.S.G.§ 4B1.1(a) and § 4B1.2(a), to trigger
the career offender enhancement and make him a career
offender. Defendant is mistaken because, as will be
explained, his prior ...