United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
SUPPLEMENTAL MOTION TO VACATE SENTENCE ,
VACATING ORDER GRANTING MOTION TO VACATE
, DENYING PETITIONER'S MOTION TO VACATE
SENTENCE , AND DENYING A CERTIFICATE OF
Gershwin A. Drain United States District Court Judge.
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.
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  and DENIES Petitioner's Motion to Vacate
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.
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
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.
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.
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.
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)).
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