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United States v. Whitfield

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

July 8, 2019




         In 2014, Defendant pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). This offense anticipates a maximum sentence of up to 10 years imprisonment; however, Defendant had 3 previous violent felonies or serious drug offense convictions and was subject to the statutorily mandated minimum sentence of 15 years imprisonment pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The Government, however, filed a motion for downward departure based on Defendant's substantial assistance, which this court accepted and sentenced Defendant to 10 years imprisonment with 3 years supervised release. (ECF No. 32.) Defendant filed a notice of appeal but voluntarily dismissed it before the Sixth Circuit ruled on the merits. (ECF No. 30.)

         Pending now before the court is Defendant's Motion to Vacate and Correct his sentence under 28 U.S.C. § 2255. (ECF No. 37.) The court noted that this motion would be considered and decided without oral argument. (ECF No. 39.) For the reasons stated below, the court will GRANT Defendant's motion and set the case for resentencing.

         I. STANDARD

         Under § 2255, a prisoner sentenced by a federal court may “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). As “[§] 2255 is not a substitute for a direct appeal, ” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)), “a prisoner must clear a significantly higher hurdle than would exist on direct appeal” to merit collateral relief. Frady, 456 U.S. at 166. Consequently, “[t]o prevail on a § 2255 motion alleging constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Though non-constitutional errors are generally outside the scope of § 2255 relief, see United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000), a petitioner can prevail on a § 2255 motion alleging non-constitutional error “establish[ing] a ‘fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.'” Watson, 165 F.3d at 488 (internal quotation marks omitted) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)).


         Defendant's primary argument is focused on the effect of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Government argues that Johnson does not entitle Defendant to relief and argues, in the alternative, that Defendant's motion should be denied because he has procedurally defaulted on his claims. The court will address these arguments in turn.

         A. Johnson Argument

         The Supreme Court held in Johnson that the residual clause of the ACCA is unconstitutionally vague. Johnson, 135 S.Ct. at 2557. Defendant argues that post-Johnson, (1) his predicate offenses no longer qualify as crimes of violence and (2) he must be resentenced without consideration of an ACCA enhancement. (ECF No. 37, PageID 65.) The Government does offer any disagreement with Defendant's first argument-that he no longer possesses the requisite predicate offenses for an ACCA enhancement to apply-but does take issue with the second argument. The Government contends that even if Defendant's sentence is implicated by Johnson, he need not be resentenced because his sentence of 10 years is still within the statutory maximum as provided in 18 U.S.C. § 924(a)(2). (ECF No. 42, PageID 79.) Accordingly, the Government argues that Defendant is not entitled to resentencing because his sentence of 10 years did not exceed the maximum now authorized by law and, therefore, is not unconstitutional, even considering Johnson. (Id.)

         Under the ACCA, “[i]f a defendant has ‘three previous convictions . . . for a violent felony or a serious drug offense,' the ACCA imposes a mandatory minimum 15- year sentence.” Perez v. United States, 885 F.3d 984, 987 (6th Cir. 2018) (citing 18 U.S.C. § 924(e)(1)). Prior to Johnson, predicate crimes of violence were those crimes punishable by at least one year of imprisonment and either:

(i) [H]a[d] as an element the use, attempted use, or threatened use of physical force against the person of another [the elements clause]; or (ii) [was] burglary, arson, or extortion, involves use of explosives [the enumerated-crimes clause], or otherwise involve[d] conduct that presents a serious potential risk of physical injury to another [the residual clause].

Potter v. United States, 887 F.3d 785, 787 (6th Cir. 2018) (citing 18 U.S.C. § 924(e)(2)(b)). Following Johnson, crimes qualify as predicate crimes of violence only if they satisfy either the elements clause or the enumerated clause.

         Defendant's earlier offenses included the following convictions: Delivery of Controlled Substances; Felonious Assault (M.C.L. § 750.82); two Third Degree Fleeing and Eluding (M.C.L. § 750.479a); two Domestic Violence Third (M.C.L. § 768.27b); and Resisting and Obstructing (M.C.L. § 750.479). (ECF No. 37, PageID 64.) While Defendant's prior conviction for Delivery of Controlled Substances and Felonious Assault qualify as predicate offenses, the parties agree none of his other convictions qualify as “crimes of violence” post-Johnson. See Crump v. United States, No. 17-1821, 2017 WL 6945865, at *1 (6th Cir. Nov. 20, 2017) (explaining that Felonious Assault (M.C.L. § 750.82) is a violent felony under the elements clause); Garza v. United States, No. 09-20249, 2014 WL 7334575, at *4 (E.D. Mich. Dec. 19, 2014) (finding that a third-degree fleeing and eluding (M.C.L. § 750.479a) conviction falls within the ACCA's residual clause); United States v. Gibbs, 626 F.3d 344, 352 n.6, 355 (6th Cir. 2010) (explaining that ACCA and Guidelines have “essentially the same definitions” and holding that the defendant's conviction for resisting and obstructing an officer is “not categorically a crime of violence” under the Sentencing Guidelines). Thus, based on Sixth Circuit precedent, Defendant no longer has the requisite three predicate offenses to qualify for an ACCA enhancement under 18 U.S.C. § 924.

         The Government does not attempt to argue that Defendant has the requisite predicate offenses post-Johnson to justify enhancement. Instead, the Government chooses to argue that Defendant has not been prejudiced by his imposed sentence because he could still have received a 10-year ...

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