United States District Court, D. Nevada
January 10, 2017
UNITED STATES OF AMERICA, Plaintiff,
DAVID DOUGLAS AVERY, Defendant.
R. HICKS UNITED STATES DISTRICT JUDGE
January 3, 2017, this court issued an order granting
petitioner David Douglas Avery's motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (ECF No. 203). ECF No. 214. The court vacated
Avery's sentence, resentenced him to ten years'
imprisonment, and re-imposed the terms of supervised release
imposed in this court's amended judgment (ECF No. 176).
ECF No. 214 at 20.
Avery was originally deemed an armed career criminal under
the ACCA, the statute required the court to sentence him to
not less than fifteen years' imprisonment. 18 U.S.C.
§ 924(e)(1). Avery was therefore eligible for a
five-year maximum term of supervised release, which the court
imposed in its amended judgment (ECF No. 176 at 3). 18 U.S.C.
§§ 3583(b)(1), 3559(a).
this court ruled that, under Johnson v. United
States, 135 S.Ct. 2551 (2015), Avery is no longer an
armed career criminal, he was only eligible for a ten-year
maximum sentence for violating 18 U.S.C. § 922(g)(1). 18
U.S.C. § 924(a)(2). Accordingly, he may be resentenced
only to a three-year maximum term of supervised release. 18
U.S.C. §§ 3583(b)(2), 3559(a). The court will
therefore amend its last order (ECF No. 214) and impose a
three-year term of supervised release.
THEREFORE ORDERED that the court's January 3, 2017 order
(ECF No. 214) is AMENDED only as to the
length of David Douglas Avery's term of supervised
FURTHER ORDERED that Avery is sentenced to three years of
FURTHER ORDERED that all other terms of supervised release
imposed in this court's amended judgment (ECF No. 176)
and re-imposed in the court's January 3, 2017 order (ECF
No. 214) remain imposed.