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United States v. Mitchell

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

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LAURYE LESHAW MITCHELL, Defendant.

          MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (Doc. 73)

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I.

         This is a criminal case. In 2009, defendant was convicted of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a).[1] Because defendant had two prior state convictions for bank robbery, he was considered a career offender under U.S.S.G. §4B1.1 on the grounds his prior convictions constitute “crimes of violence” under U.S.S.G. § 4B1.2(a). He was sentenced to 151 months imprisonment.

         Before the Court is defendant's motion to vacate under 28 U.S.C. § 2255 (Doc. 73).[2] Defendant raises two arguments: (1) the federal bank robbery statute cannot qualify as a violent felony and (2) that under Johnson v. United States, 135 S.Ct. 2551 (2015) his prior convictions for bank robbery are no longer “crimes of violence” under U.S.S.G. § 4B1.1.

         For the reasons that follow, the motion is DENIED.

         II.

         Title 28 U.S.C. § 2255provides:

“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.”

         To prevail under § 2255, defendant 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)).

         III.

         Defendant primarily 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.

         IV.

         A.

         First, defendant's challenges his career offender designation under the sentencing guidelines based on Johnson, i.e. vagueness, fails. The Supreme Court has recently 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 ...


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