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United States v. Zimmerman

United States District Court, D. Nevada

July 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES BRETT ZIMMERMAN, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is petitioner James Brett Zimmerman's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] ECF No. 95. Because Beckles v. United States, 137 S.Ct. 886 (2017) forecloses Zimmerman's only claim for relief, the court will deny his motion and deny him a certificate of appealability.

         I. Background

         On January 22, 2007, Zimmerman pled guilty to one count of federal bank robbery. ECF Nos. 38-39. On May 7, 2007, this court sentenced Zimmerman to 240 months of imprisonment. ECF Nos. 42-43. In arriving at this sentence, the court applied the career-offender enhancement under U.S.S.G. § 4B1.1 based on the fact that his instant offense and two prior federal and state robbery convictions were all crimes of violence. See ECF No. 95 at 3; ECF No. 60 at 3-4; see also U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2016) (defining the career-offender enhancement).

         On April 14, 2008, Zimmerman moved to vacate his sentence pursuant to 18 U.S.C. § 2255. ECF No. 46. The court denied that motion (ECF No. 81), which was affirmed by the Ninth Circuit Court of Appeals (ECF No. 89). Pursuant to 18 U.S.C. § 2255(h), Zimmerman sought authorization from the Ninth Circuit before filing his instant second section 2255 motion (ECF No. 96), which the Ninth Circuit granted (ECF No. 99).

         II. Legal standard

         Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         III. Discussion

         A. Pursuant to Beckles v. United States, Zimmerman is not entitled to relief

         Zimmerman seeks relief in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015). There, the U.S. Supreme Court ruled that a portion of the ACCA's violent-felony definition, often referred to as the “residual clause, ” was unconstitutionally vague (i.e., “void for vagueness”). Johnson, 135 S.Ct. at 2557. The ACCA applies to certain defendants charged with unlawful possession of a firearm under 18 U.S.C. § 922(g), such as being a felon in possession of a firearm under § 922(g)(1). 18 U.S.C. § 924(e). The Supreme Court subsequently held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review, Welch v. United States, 136 S.Ct. 1257 (2016), thus allowing defendants to challenge their ACCA convictions under section 2255.

         Moreover, Johnson also sparked challenges to other federal criminal statutes and sections of the U.S. Sentencing Guidelines that incorporate a “crime-of-violence” definition that includes a residual clause similar or identical to the ACCA's. Although some of these issues are currently on appeal, the Supreme Court recently ruled in Beckles v. United States that “the advisory Sentencing Guidelines, including [U.S.S.G.] § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine.” Beckles, 137 S.Ct. at 896.

         Here, Zimmerman's central argument is that the residual clause under U.S.S.G. § 4B1.2(a)'s crime-of-violence definition is void for vagueness in light of Johnson. ECF No. 95 at 3-5. The Supreme Court's decision in Beckles forecloses this argument, and this court will therefore deny Zimmerman's motion.[2]

         B. The court will deny Zimmerman a certificate of appealability

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “an appeal may not be taken to the court of appeals from . . . the final order in a proceeding under section 2255” unless a district court issues a certificate of appealability (“COA”) based on “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(B). “The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. To meet this threshold inquiry, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or ...


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