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United States v. Vaughn

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

January 10, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent
v.
OMAR VAUGHN, Defendant/Petitioner.

          ORDER GRANTING PETITIONER'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. §2255

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         This is a habeas case under 28 U.S.C. §2255. Omar Vaughn was convicted of: Count One, Felon in Possession of a Firearm, 18 U.S.C. §922(g)(1), and Count Two, Possession with Intent to Distribute Marijuana, 21 U.S.C. 841(a)(1), (b)(1)(D). The Government sought a sentencing enhancement and designated Vaughn as a Career Offender based on previous convictions: felonious assault, 1991; delivery of controlled substances under 50 grams (2 Counts), 1994; and fleeing and eluding, 1996. Taking these convictions into account, the Government sought a sentencing range of 151-188 months. The Court sentenced Vaughn to 120 months for Count One and 31 months for Count Two, consecutive - for a total of 151 months.

         Vaughn filed a petition for writ of habeas corpus. He says his 151 month sentence was erroneously calculated because his 1991 felonious assault conviction was outdated and should not have been used as a predicate offense for a Career Offender sentencing enhancement.

         The Government responded to Vaughn's motion and agreed that his 1991 felonious assault conviction should not have counted because of its age, or used as a predicate offense for a Career Offender sentencing enhancement. The Government agrees that absent this error, Vaughn's range should have been 84-105 months.

         The Government requests an evidentiary hearing and a new Presentence Investigation Report (“PSIR”) to determine if Vaughn is entitled to relief under 28 U.S.C. §2255(b). The Government does not say why an evidentiary hearing is warranted.

         Vaughn correctly argues that his counsel was ineffective because he failed to object to the sentencing error; his range should have been 84-105 months. Vaughn has already served in excess of the top of his guideline range and has served any sentence he would receive if the Court resentenced him. No evidentiary hearing is necessary. The petition for writ of habeas corpus is GRANTED. Vaughn is ordered unconditionally released immediately.

         I. PROCEDURAL HISTORY

         A Grand Jury returned an Indictment that charged Vaughn with Count One: Felon in Possession of a Firearm, in violation of 18 U.S.C. §922(g) and Count Two: Possession with Intent to Distribute Marijuana, in violation of 18 U.S.C. §841(a)(1), (b)(1)(D).

         Vaughn pled guilty to both counts. The PSIR concluded that Vaughn committed the offenses after he had already been convicted of two prior felonies for controlled substances or crimes of violence.

         Vaughn was sentenced according to the Firearms Guideline, U.S.S.G. §2K2.1, and the Career Offender Guideline, U.S.S.G. §4B1.1, which allows for a sentencing enhancement based on prior felony convictions for controlled substances or crimes of violence; Vaughn was sentenced as a Career Offender.

         Under the Firearms Guideline §2K2.1(a)(2), Vaughn was given a base offense level of 24. After adjustments, his Total Offense Level became 29. His Count Two controlled substances offense placed Vaughn in Criminal History Category VI under the Career Offender Provisions of Chapter 4 of the Sentencing Guidelines. Ultimately, Vaughn's overall guideline range became 151-188 months. The Court sentenced Vaughn to 151 months, relying on the PSIR. Vaughn' attorney did not object. Vaughn did not file a notice of appeal.

         Vaughn initially argued in his Motion to Vacate Sentence that his sentence enhancement was based on the 1996 conviction for Fleeing and Eluding which no longer qualified as a crime of violence under the Career Offender Guidelines after the Johnson decision. In Johnson, the Supreme Court held that the residual clause of “violent felony” under the Armed Career Criminal Act was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). This definition of “violent felony” is identical to 18 U.S.C. Appx. §4B1.2's definition of “crime of violence.”

         In United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) the Sixth Circuit held that Johnson was applicable to the Career Offender Guideline definition of “crime of violence” under §4B1.2(a) and that the identical residual clause construed in Johnson was also unconstitutionally vague and retroactively applicable.

         Vaughn's initial motion was stayed pending the outcome in Beckles. Beckles held that advisory guidelines such as the U.S.S.G., are not subject to void for vagueness challenges under Joh ...


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