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Rice v. United States

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

March 1, 2018

Ronald Rice, Movant,
v.
United States of America, Respondent.

          ORDER DENYING MOVANT'S MOTION TO VACATE SENTENCE [116]

          ARTHUR J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE.

         Movant Ronald Rice, through counsel, filed the instant Motion to Vacate Sentence pursuant to 28 U.S.C § 2255 [116] on October 25, 2016. The Government filed a Response [22] on December 1, 2017. For the reasons stated below, the Court DENIES the Motion to Vacate Sentence.

         Factual and Procedural Background

         On 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 conviction.

         The 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.

         Following 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.

         On April 30, 2009, Rice filed his first Motion to Vacate Sentence [62] 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 [84]. The Sixth Circuit affirmed this Court's judgment on September 16, 2010. [Dkt. #91].

         On 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 [116] on that date. The Government filed a Response [122] on December 1, 2017.

         Analysis

         To 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)).

         Rice 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 ...


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