United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO VACATE
J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE.
Lynnie Roberson, through counsel, filed a Motion to Vacate
Sentence pursuant to 28 U.S.C § 2255  on June 24,
2016. The Government filed a Response  on December 1,
2016. Defendant filed a Reply  on December 15, 2016. For
the reasons stated below, the Motion to Vacate Sentence 
and Procedural Background
September 4, 2013, Roberson pleaded guilty to Distribution of
Crack Cocaine (Counts V and VI) in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(c). The Rule 11 Plea
Agreement  provided a Sentencing Guidelines' range of
151-188 months, based in part on an enhancement under the
Guidelines' career offender provisions, § 4B1.2(a),
for a 2003 conviction of Assault of a Prison Employee. The
Plea Agreement  also included a joint recommendation that
the Court sentence Roberson to five years of imprisonment.
Court held a Sentencing Hearing on January 23, 2014. On
January 30, 2014, the Court sentenced Roberson to five years
of imprisonment on Counts V and VI to be served concurrently.
Roberson did not appeal his conviction.
24, 2016, Roberson filed the instant § 2255 Motion
seeking relief under Johnson v. United States, 135
S.Ct. 2551 (2015). On July 7, 2016, the Government filed a
Motion to Stay Litigation Pending Supreme Court's
Decision in Beckles v. United States . On August
15, 2016, the Court denied the Government's Motion to
Stay. [Dkt. #43]. The Government filed a Response  to
Roberson's § 2255 Motion on December 1, 2016.
Roberson filed a Reply  on December 15, 2016.
was released from the custody of the Federal Bureau of
Prisons on July 31, 2017.
succeed on a motion to vacate, set aside, or correct
sentence, a movant must allege: “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Pough v. United States, 442 F.3d
959, 964 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)).
Motion , Roberson argues that he is entitled to
resentencing under Johnson because his 2003
conviction for Assault of a Prison Employee no longer
qualifies as a “crime of violence” under the
career offender provisions of the Guidelines. Roberson
maintains that his appropriate Guidelines' range is 30-37
Roberson's claim for relief is moot
petitioner who files a § 2255 motion must demonstrate
that he has standing to seek relief from the federal courts.
Pola v. United States, 778 F.3d 525, 529 (6th Cir.
2015). Once a petitioner's sentence has expired, some
concrete and continuing injury other than the now-ended
incarceration or parole-a “collateral
consequence” of the conviction-must exist if the suit
is to be maintained and not considered moot. See Spencer
v. Kemna, 523 U.S. 1, 7 (1998).
a habeas petitioner chooses to attack only his or her
sentence, and not the underlying conviction, and that
sentence expires during the course of the habeas proceeding,
the habeas petitioner's claim for relief is moot.”
Brock v. White, No. 2:09-CV-14005, 2011 WL 1565188,
at *2 (E.D. Mich. Apr. 25, 2011).
filed the instant Motion  on June 24, 2016. Because
Roberson has since been released from federal custody,
attacks only his sentence, and does not claim to be suffering
from a collateral consequence of his conviction, his claim
for relief is moot. See United States v. Perotti,
702 Fed.Appx. 322, 325 (6th Cir. 2017) (rendering as moot an
appeal of the district court's order denying the
defendant's § 2255 petition where he was released
from federal custody); see alsoUnited States v.
Buchannan, No. 02-90030, 2008 WL 2008556, at *2 (E.D.
Mich. May 8, 2008) (“Because defendant ...