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United States v. Johnson

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

August 17, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
DAMON LAMAR JOHNSON D-2, Defendant-Petitioner. Civil No. 16-12322

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE [#117], ORDER DISMISSING CIVIL CASE NO.16-12322 AND ORDER DENYING CERTIFICATE OF APPEALABILITY

          DENISE PAGE HOOD CHIEF JUDGE

         I. BACKGROUND

         On September 5, 2002, Defendant Lamar Johnson was charged in an Indictment with Bank Robbery, Aiding and Abetting (Count One); and Using, Carrying, Brandishing and Discharging a Firearm During a Crime of Violence, Aiding and Abetting (Count Two). (Doc # 1) On February 26, 2003, Defendant was charged with six additional counts in a First Superseding Indictment: two counts of Carjacking (Counts Three and Five); another two counts of Using and Carrying a Firearm During a Crime of Violence, Aiding and Abetting (Counts Four and Six); Bank Robbery (Count Seven); and Using and Carrying a Firearm During a Crime of Violence (Count Eight). (Doc # 49)

         On October 9, 2003, Defendant pled guilty to Counts One, Three, Five, Seven, and Eight. (Doc # 73) He also pled guilty to two additional counts in Case No. 03-80676-one count of aggravated bank robbery and one count of discharging a firearm during a crime of violence, aiding and abetting. A Corrected Rule 11 Plea Agreement was entered on April 2, 2004. (Doc # 80) Due to his career offender status under the Sentencing Guidelines, Defendant's adjusted offense level increased to 37 and his criminal history category became a IV. Defendant received a three level sentence reduction for acceptance of responsibility, bringing his offense level to 34. Defendant's advisory guideline range was 262 to 327 months.

         The Court imposed a Judgment on March 29, 2004 and sentenced Defendant to be imprisoned for a total term of 48 months on Counts One, Three, Five and Seven, the sentence to run concurrently as to each count. The Court also sentenced Defendant to be imprisoned for a total term of 10 years on Count Eight, the sentence to run consecutively to the sentence imposed on Counts One, Three, Five, and Seven. Defendant is serving a 39-year sentence because a sentence of 25 years imposed in Case No. 03-80676 was to run consecutively to the aforementioned sentence. The Court sentenced Defendant to supervised release for a term of three years, the sentence to run concurrently as to each count. (Doc # 82) The Court also ordered Defendant to pay $69, 189.00 in restitution. Defendant did not file an appeal in this matter.

         On June 22, 2016, Defendant filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 claiming: (1) that the residual clause of the career offender advisory guidelines is unconstitutionally vague in light of the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause of the Armed Career Criminal Act is unconstitutionally vague; and (2) that the definition of a “crime of violence” under 18 U.S.C. § 924(c) (under which Defendant was convicted) was invalidated by Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc # 117)

         On August 17, 2016, the Court entered an Order Staying Litigation Pending the Supreme Court's Decision in Beckles v. United States, 137 S.Ct. 886 (2017). (Doc # 126) On March 6, 2017, the Supreme Court issued an opinion in Beckles. The Court lifted the stay and ordered briefing on March 17, 2017. (Doc # 133) The Government filed a Response on June 19, 2017. (Doc # 138) Defendant filed a Reply on July 10, 2017. (Doc # 140)

         II. ANALYSIS

         A. Standard of Review

         Section 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). In order to prevail on a Section 2255 motion, the movant must show: “(1) an error of constitutional magnitude; (2) a sentence imposed outside of the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).

         B. Johnson's Application to the Sentencing Guidelines

         Defendant moves for resentencing pursuant to the Johnson decision: “My increased sentence was imposed under the residual clause of USSG 4B1.2(a) and is now unconstitutional in light of Johnson v. United States….” (Doc # 117, Pg ID 398). Johnson v. United States, 135 S.Ct. 2551 (2015), on which Defendant relies, is the Supreme Court case that invalidated the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (“ACCA”), on vagueness grounds. Id. at 2557. The instant Motion was stayed by this Court pending a decision in Beckles to determine whether the residual clause in the career-offender provision of the advisory federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a), was also unconstitutionally vague.

         The Supreme Court held in Beckles that the residual clause of the Sentencing Guidelines is not void for unconstitutional vagueness: “…the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.” Beckles, 137 S.Ct. at 892.

         Defendant's first argument fails because Johnson does not apply to the advisory Sentencing Guidelines and does not change Defendant's career offender classification.

         C. Johnson's Application to 18 ...


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