United States District Court, N.D. California
ORDER GRANTING § 2255 MOTION
CLAUDIA WILKEN United States District Judge.
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. Having considered all of the papers filed
by the parties and the record in this case, the Court will
GRANT the motion.
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
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
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.
Johnson v. United States
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
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.
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.
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 ...