United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
VACATE AND CORRECT SENTENCE AND ORDERING
H. CLELAND UNITED STATES DISTRICT JUDGE.
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.
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.
§ 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)).
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.
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.)
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
(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
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.
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 ...