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United States v. Dunlap

United States District Court, N.D. California

July 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON E. DUNLAP, Defendant.

          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 October 18, 2010, the Court entered a judgment convicting defendant of one count of bank robbery, four counts of armed bank robbery, and one count of interstate transportation of a stolen vehicle. The presentence report calculated a guidelines range of 188 to 235 months after applying an enhancement under Section 4B1.2 of the United States Sentencing Guidelines (PSR ¶ 74). The Court sentenced defendant to 188 months imprisonment.

         On May 13, 2016, defendant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255 (Dkt. No. 25). 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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