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United States v. McGary

United States District Court, N.D. California

August 3, 2016



          CLAUDIA WILKEN United States District Judge.

         Movant Isaiah McGary, represented by counsel, moves under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Respondent has filed an opposition to the motion and Movant has filed a reply.[1] Having considered all of the papers filed by the parties and the record in this case, the Court will GRANT the motion.


         A. Procedural Background

         On April 7, 2014, Movant plead guilty, pursuant to a plea agreement, to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The plea agreement contained a collateral attack waiver. Docket No. 13 at ¶ 5. Applying United States Sentencing Guideline (USSG) § 2K2.1(a)(2), the Presentence Report (PSR) indicated that Movant’s base offense level was 24, because Movant had one prior conviction for a crime of violence, theft from a person, and one prior conviction for a controlled substance offense, possession of a controlled substance with intent to distribute. Section 2K2.1(a)(2) relies on the Career Offender Guideline, USSG § 4B1.2, for the definition of crime of violence. The PSR applied a three-level downward adjustment for acceptance of responsibility, resulting in a total offense level of 21. The PSR indicated that Movant should be classified in Criminal History Category IV, resulting in an advisory Guidelines range of fifty-seven to seventy-one months. If Movant’s sentence had not been enhanced based on the crime of violence, his total offense level would have been 17, with a resulting advisory Guidelines range of thirty-seven to forty-six months.

         In the plea agreement, the parties agreed to recommend a sixty-eight month aggregate sentence for both the felon in possession offense and a violation of supervised release for a prior federal conviction.

         At sentencing, the Court found that Movant’s advisory Guidelines range was fifty-seven to seventy-one months and sentenced him to sixty months of imprisonment. The Court also imposed a consecutive eight-month sentence for the violation of supervised release for a total sentence of sixty-eight months. Movant did not file a direct appeal but, on May 16, 2016, after the Supreme Court issued its decision in Johnson v. United States, 135 S.Ct. 2551 (2015), he filed the instant § 2255 motion.

         B. Johnson v. United States

         In Johnson, the Supreme Court addressed a challenge to the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides that a defendant with three prior “violent felony” convictions faces a fifteen-year mandatory-minimum sentence if convicted of violating 18 U.S.C. § 922(g). 18 U.S.C. § 924(e). The ACCA residual clause definition of “violent felony, ” which encompasses any crime that “involves conduct that presents a serious potential risk of physical injury to another, ” is identical to the residual clause of the Guidelines’ definition “crime of violence.” The Ninth Circuit makes “no distinction between the terms ‘violent felony’ as defined in the ACCA and ‘crime of violence’ as defined in § 4B1.2(a)(2) of the Sentencing Guidelines for purposes of interpreting the residual clauses.” United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (quoting United States v. Crews, 621 F.3d 849, 852 n.4 (9th Cir. 2010) (internal alteration marks omitted).

         The Johnson Court held that the residual clause is so vague that it “both denies fair notice to defendants and invites arbitrary enforcement by judges.” 135 S.Ct. at 2557. Accordingly, the Johnson Court held that an increase to a defendant’s sentence under the clause “denies due process of law.” In Welch v. United States, 136 S.Ct. 1357 (2016), the Supreme Court held that Johnson is retroactive as applied to the ACCA. However, neither the Supreme Court nor the Ninth Circuit has addressed whether Johnson is retroactive as to the identical language in the Sentencing Guidelines.


         A prisoner in custody under sentence of a federal court, making a collateral attack against the validity of his or her conviction or sentence, must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the court which imposed the sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Section 2255 was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Addonizio, 442 U.S. 178, 185 (1979). Under 28 U.S.C. § 2255, a federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States.


         The government agrees that Johnson applies to the Sentencing Guidelines and agrees that, if Movant were challenging his sentence on direct appeal, his sentence would be subject to reversal. However, the government argues that Movant waived his right to bring the current motion. In addition, the government argues that Movant procedurally defaulted his claim under Johnson by failing to ...

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