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United States v. Donnelly

United States District Court, D. Nevada

April 11, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
JEFFREY MICHAEL DONNELLY, Defendants.

          ORDER

         Presently before the court is petitioner Jeffrey Michael Donnelly's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 42). The government filed a response (ECF No. 44), to which petitioner replied (ECF No. 46).

         Also before the court is the government's motion for leave to advise the court of relevant new authority. (ECF No. 45).[1]

         I. Facts

         On December 22, 2004, petitioner pleaded guilty (without a plea agreement) to one count of felon in possession of a firearm under 18 U.S.C. § 922(g)(1). (ECF No. 27). The PSR calculated petitioner's guideline range as 188 to 235 months and recommended a sentence of 235 months. (PSR at 85, 98).

         On April 7, 2005, the court sentenced petitioner to 188 months in custody (low end of the guideline range), followed by five (5) years supervised release. (ECF No. 34). Petitioner was advised of his rights to file an appeal. (ECF No. 34). The court entered judgment on April 18, 2005. (ECF No. 36).

         In the instant motion, petitioner moves to vacate the sentencing enhancement applied to his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”), and requests that the court resentence him to 57 months. (ECF No. 42).

         II. Legal Standard

         Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

         Limitations on § 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         III. Discussion

         In the instant motion, petitioner requests that the court vacate his erroneous sentencing enhancement pursuant to Johnson and resentence him to 57 months. (ECF No. 42). In particular, petitioner argues that his three prior Florida convictions for aggravated assault, robbery, and armed robbery no longer qualify as “violent felonies” for purposes of the fifteen (15) year mandatory minimum sentence under the Armed Career Criminal Act of 1984 (“ACCA”). (ECF No. 42 at 4).

         The court disagrees. In Johnson, the United States Supreme Court held the residual clause in the definition of a “violent felony” in the ACCA, to be unconstitutionally vague. 135 S.Ct. at 2557. In particular, the Supreme Court held that “increasing a defendant's sentence under the clause denies due process of law.” Id. The ACCA defines “violent felony” as any crime punishable by imprisonment for a term exceeding one year, that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...

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