United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOVANT'S MOTION TO VACATE SENTENCE
J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE.
Ronald Rice, through counsel, filed the instant Motion to
Vacate Sentence pursuant to 28 U.S.C § 2255  on
October 25, 2016. The Government filed a Response  on
December 1, 2017. For the reasons stated below, the Court
DENIES the Motion to Vacate Sentence.
and Procedural Background
April 24, 2008 Rice pleaded guilty to: Possession with Intent
to Distribute Controlled Substances (Count IV) in violation
of 21 U.S.C. § 841(a)(1); and Felon in Possession of a
Firearm, Armed Career Criminal (Count V) in violation of 18
U.S.C. § 922(g)(1) and (e). The Rule 11 Plea Agreement
provided that Rice would be subject to a 15-year mandatory
minimum on Count V, pursuant to the Armed Criminal Career Act
(“ACCA”), 18 U.S.C. § 924(e)(1). The Plea
Agreement further provided a Sentencing Guidelines' range
of 188 to 235 months, based in part on enhancements under the
Guidelines' career offender provisions, § 4B1.2(a),
and Armed Career Criminal provisions, § 4B1.4, for: a
1981 Attempted Armed Robbery conviction; two 1982 Breaking
and Entering an Occupied Dwelling convictions; and a 2007
Assault with Intent to do Great Bodily Harm Less than Murder
Court held a Sentencing Hearing on April 24, 2008. At the
Hearing, the Court explained:
All right. I am starting out from the presentence report,
which shows a category VI for prior record and a level 31 for
participation, which is a 188- to 235-month sentence, which
is -- 235 months is 19 years and 7 months. The sentencing
guideline range is advisory. It tells me where to start -- at
least that's my understanding -- and tells me that a
sentence within that guideline range is probably going to be
found to be reasonable.
There is a 15-year minimum here, which means 180 months you
are going to get no matter what. I have no discretion to go
under 180. And, quite frankly, with your record, there's
no reason for me to go under 180 or even under the 188 of the
bottom of the guideline range. After I start with the
guideline range, then I have to consider the seriousness of
the offense. Obviously, it's a serious offense. Also your
prior record is extraordinary and it's serious.
Sent'g Hr'g Tr. 14:16-25; 15:1-7, Apr. 24, 2008.
the Hearing, the Court sentenced Rice to 235 months of
imprisonment on Counts IV and V to run concurrent as to each
count and concurrent as to his State of Michigan sentence.
[Dkt. #55]. Rice did not appeal his conviction.
April 30, 2009, Rice filed his first Motion to Vacate
Sentence  pursuant to 28 U.S.C. § 2255. The Court
denied the Motion on August 5, 2009. [Dkt. #83]. On August
11, 2009, Rice filed a Notice of Appeal . The Sixth
Circuit affirmed this Court's judgment on September 16,
2010. [Dkt. #91].
October 25, 2016, the Sixth Circuit authorized the filing of
a second or successive motion to vacate sentence in light of
the Supreme Court's ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015). Rice filed the instant
Motion to Vacate Sentence  on that date. The Government
filed a Response  on December 1, 2017.
succeed on a motion to vacate, set aside, or correct
sentence, a petitioner 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)). “To
prevail on a claim of constitutional error, a prisoner
‘must demonstrate the existence of an error of
constitutional magnitude which had a substantial and
injurious effect' on the proceedings.” Fairley
v. United States, No. 12-CR-20786, 2017 WL 2535462, at
*1 (E.D. Mich. June 12, 2017) (quoting Hamblen v. United
States, 591 F.3d 471, 473 (6th Cir. 2009)).
was sentenced under the ACCA and the career offender
provisions of the Sentencing Guidelines. Rice argues that he
is entitled to resentencing under Johnson because
his Attempted Armed Robbery and Assault with Intent to do
Great Bodily Harm Less Than ...