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Fleming v. United States

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

July 25, 2017

Anthony LaJuan Fleming, Petitioner,
v.
United States of America, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S SUPPLEMENTAL MOTION TO VACATE SENTENCE [56], VACATING ORDER GRANTING MOTION TO VACATE [43], DENYING PETITIONER'S MOTION TO VACATE SENTENCE [36], AND DENYING A CERTIFICATE OF APPEALABILITY

          Hon. Gershwin A. Drain United States District Court Judge.

         I. Introduction

         On June 9, 2008, Anthony Fleming (“Fleming” or “Petitioner”) was indicted on two counts of distributing cocaine base, 21 U.S.C. § 841. Dkt. No. 3. On August 15, 2008, Fleming entered a guilty plea. Dkt. No. 19.

         This Court previously granted Petitioner's Motion to Vacate Sentence, Dkt. No. 43, but now reconsiders its ruling in light of the Supreme Court's opinion in Beckles v. United States, 137 S.Ct. 886 (2017). Having read and considered supplemental briefing, the Court now VACATES its prior order [43] and DENIES Petitioner's Motion to Vacate [36].

         II. Factual Background

         On October 11, 2007, Fleming sold 22.3 grams of cocaine base to a controlled source. Dkt. No. 19. Later that month, on October 19, 2007, a Michigan State Police Confidential Informant contacted Fleming and arranged the controlled purchase of a quantity of cocaine base, commonly known as “crack” cocaine. Id. Later that day, the confidential source, while under surveillance, met with Fleming at the City Center Plaza in Flint, Michigan, and purchased 103 grams of cocaine base directly from Fleming. Id.

         Fleming was indicted on two counts of distributing cocaine base in June 2008. Dkt. No. 3. On August 15, 2008, Fleming pleaded guilty to Count Two- distribution of 50 or more grams of cocaine base-and the Government agreed to dismiss Count One. Dkt. No. 19. Fleming's counsel objected to whether Fleming's prior conviction for fleeing constituted a crime of violence under the guidelines. See Dkt. No. 25, p. 6, 14 (Pg. ID No. 65, 73). (“Your Honor, the offense itself for lack of a better phrase is one set of guidelines. The Career Enhancements take it to an entirely different realm and we made our positions clear on that.”). Fleming was sentenced to 290 months imprisonment on December 5, 2008. Dkt. No. 20, p. 2 (Pg. ID No. 50).

         On January 6, 2009, Fleming filed a Notice of Appeal to the Sixth Circuit regarding his Judgement and Sentence. Dkt. No. 21. The Sixth Circuit dismissed the appeal, noting that Fleming waived his appeal because his sentence was within the agreed sentencing range after knowingly and voluntarily entering a guilty plea. Dkt. No. 29.

         In December 2012, Fleming filed a Motion for Retroactive Application of Sentencing Guidelines to his crack cocaine offense. Dkt. No. 30, 31. The Court ordered the appointment of a federal defender to determine his eligibility. Dkt. No. 32. The Federal Defender's Office determined that Fleming was not eligible for a sentence modification because the modification to the crack guideline “does not have the effect of lowering the [Fleming's] applicable guideline range.” Dkt. No. 34. The Court then denied Fleming's Motion for Reconsideration because reductions were not permitted for defendants who were sentenced prior to the effective date of the Fair Sentencing Act. Dkt. No. 35.

         In June 2016, the Court granted Petitioner's Motion to Vacate. Dkt. Nos. 36, 43. However, the Court granted the Government's request to stay resentencing until the Supreme Court issued a ruling in Beckles. Dkt. No. 48. The Beckles decision having been rendered, the Court ordered supplemental briefing from the parties to address the new precedent Beckles set. Dkt. No. 51. The Court now reevaluates its prior order in light of the change in binding precedent.

         III. Legal Standard

         Title 28 U.S.C. § 2255 permits a prisoner in federal custody to challenge the legality of his or her detention. See Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir. 2012). A federal prisoner may do this by filing a motion with the imposing court, seeking to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). To prevail on a § 2255 motion for constitutional error, the petitioner must show that the error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005). The “substantial and injurious effect” standard is in essence an assessment of the prejudicial impact of the constitutional violation. See McCary v. Lewis, 255 F. App'x 78, 79 (6th Cir. 2007) (citing Fly v. Pliler, 551 U.S. 112 (2007)).

         IV. Discussion

         In his supplemental motion to vacate, Petitioner argues (1) that the invalidation of the residual clause of the Sentencing Guidelines presents a new fact not previously available; and (2) that the Sixth Circuit's holding in United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016) presents change in circuit law. Dkt. No. 56, p. 5 (Pg. ID 234). For the ...


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