United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION TO VACATE
SENTENCE UNDER 28 U.S.C. §2255
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
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.
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felonious assault conviction was outdated and should not have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
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
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.
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.
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.
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
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
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.
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
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
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 ...