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United States v. Wright

United States District Court, N.D. Ohio, Eastern Division

April 4, 2017

UNITED STATES OF AMERICA Plaintiff/Respondent,
v.
NATHANIEL ANTOINE WRIGHT, JR., Defendant/Petitioner.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGEMT, United States District Judge

         This matter comes before the Court upon Petitioner, Nathaniel Antoine Wright Jr.'s Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. §2255 (ECF # 55). Petitioner seeks to vacate his sentence on one count of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii).

         FACTUAL AND PROCEDURAL HISTORY

         On January 15, 2014, Petitioner was charged in two counts of a three count indictment. Count One charged Petitioner with aiding and abetting armed bank robbery in violation of 18 U.S.C. §§ 2 and 2113 (a) and (d), and Count Two charged Petitioner with brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). On August 6, 2014, Petitioner pleaded guilty to the indictment against him as charged.

         On November 10, 2014, this Court sentenced Petitioner to 36 months on Count One and 84 months on Count Two, to run consecutive. Petitioner did not file a direct appeal. Instead, on June 20, 2016, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255. (ECF # 55). Petitioner now asks this Court to vacate its sentence based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (finding the residual clause definition of "violent felony" in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (hereinafter "ACCA") to be unconstitutionally vague.). On August 17, 2016, the Government filed a Response in Opposition to Petitioner's Motion for Relief under 28 U.S.C. § 2255. (ECF # 61).

         ANALYSIS

         I. Legal Standards.

         A. Motion to Vacate under 28 U.S.C. § 2255.

         A petitioner that moves to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255 must demonstrate that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) it is otherwise subject to collateral attack. See 28 U.S.C. § 2255. As such, a court may grant relief under § 2255 only if a petitioner has demonstrated "a fundamental defect which inherently results in a complete miscarriage of justice." Id. (internal quotation and citation omitted). If a § 2255 motion, as well as the record, conclusively show that the petitioner is not entitled to relief, then the court need not grant an evidentiary hearing on the motion. See 28 U.S.C. § 2255; see also Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (stating that no evidentiary hearing is required where there "record conclusively shows that the petitioner is entitled to no relied") (quoting Arredonda v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). Petitioner in this case alleges that his sentence must be vacated because his crime can only be considered a crime of violence under § 924 (c)(3)(B). He alleges that § 924 (c)(3)(B) is unconstitutionally vague in violation of the Fifth Amendment to the United States Constitution and thus, his conviction must be vacated.

         B. Petitioner's Conviction is a Violent Felony under § 924 (c)(3)(A).

         The petitioner was convicted of aiding and abetting armed bank robbery under 18 U.S.C. 2 and 2113 (a) and (d). Specifically, the portion under Section 2113 (a) that the petitioner was charged with was the "force, violence, and intimidation" portion. (R. 7: Indictment, PagelD 36-37). The Sixth Circuit has determined that "force, violence, and intimidation" each involve "the use, attempted use, or threatened use of physical force." United States v. McBride, 2016 FED App. 0136P (6th Cir. 2016). This definition is the same definition of "violent felony" under 924 (c)(3)(A). Thus, the petitioner's conviction is considered a violent felony under § 924 (c)(3)(A) and his sentence is proper under § 924 (c)(3)(A).

         C. § 924 (c)(3)(B) is a narrower residual clause than the residual clause invalidated in Johnson and thus, Johnson does not apply.

         The petitioner next argues that his conviction and sentence should be vacated because § 924(c)(3)(B) is void for vagueness pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). Assuming § 924(c)(3)(A) did not support the petitioner's conviction and sentence, his argument still fails because the Sixth Circuit rejected petitioner's exact argument in United States v. Taylor,814 F.3d 340 (6th Cir. 2016) (distinguishing § 924(c)(3)(B) from the ACCA residual clause invalidated in Johnson). The Court in Johnson invalidated ...


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