United States District Court, N.D. California
ORDER GRANTING STAY
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
INTRODUCTION
Defendant,
a federal prisoner, has filed a motion to vacate, set aside,
or correct sentence under 28 U.S.C. 2255 based on the Supreme
Court’s decision in Johnson v. United States,
576 U.S. ___, 135 S.Ct. 2551 (2015). The government moves to
stay proceedings pending resolution by the Supreme Court of
the applicability of Johnson to the residual clause
of Section 4B1.2 of the United States Sentencing Guidelines.
For the reasons discussed herein, the motion to stay is
Granted.
STATEMENT
On July
23, 2013, defendant Maher Khatib pled guilty to one count of
bank robbery under 18 U.S.C. 2113(a). The presentence report
calculated a guidelines range of 151 to 188 months after
applying an enhancement under Section 4B1.2 of the United
States Sentencing Guidelines (PSR ¶ 21). On September
25, 2013, this Court entered a judgment convicting defendant
of one count of bank robbery and sentencing him to 100 months
of imprisonment (Dkt. No. 52).
On May
10, 2016, defendant filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. 2255 (Dkt. No. 56). On June
29, 2016, the government moved to stay all proceedings in
light of the Supreme Court’s grant of certiorari in
Beckles v. United States, S.Ct. Case No. 15-8544.
ANALYSIS
In
Johnson, the Supreme Court concluded that the
residual clause of the Armed Career Criminal Act, 18 U.S.C.
924(e)(2)(B), was unconstitutionally vague and that
“[i]ncreasing a defendant’s sentence under the
clause denies due process of law.” Johnson v.
United States, 135 S.Ct. 2551, 2557 (2015).
Defendant
challenges as unconstitutional the “residual
clause” of U.S.S.G Section 4B1.2(a), which is set forth
below in italics:
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
Defendant
contends that the residual clause is unconstitutional in
light of the Supreme Court’s conclusion in
Johnson. Defendant further asserts that
defendant’s 100-month sentence was imposed under the
residual clause of U.S.S.G Section 4B1.2(a), and that,
therefore, the sentence “was imposed in violation of
the Constitution” (Mtn. at 14).
The
government moves to stay all proceedings in light of the
Supreme Court’s grant of certiorari in Beckles
regarding the application of Johnson to the residual
clause in U.S.S.G. § 4B1.2(a)(2). Specifically, the
Supreme Court has granted certiorari to determine: (1)
“[w]hether Johnson applies retroactively to collateral
cases challenging federal sentences enhanced under the
residual clause in U.S.S.G. § 4B1.2(a)(2); (2)
“[w]hether Johnson’s constitutional holding
applies to the residual clause in U.S.S.G. §
4B1.2(a)(2), thereby rendering challenges to sentences
enhanced under it cognizable on collateral review”; and
(3) [w]hether mere possession of a sawed-off shotgun, an
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