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United States v. McBee

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

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
JERMAINE MCBEE, Defendant-Petitioner.

          ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          JOHN R. ADAMS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon Petitioner Jermaine McBee's Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Doc. #43.) The petition is GRANTED.

         I. STANDARD OF REVIEW

         “To prevail under 28 U.S.C. § 2255, a defendant must show a ‘fundamental defect' in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A federal district court may grant relief to a prisoner in custody only if the petitioner can “demonstrate the existence or influence on the guilty plea or the jury's verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).

         II. LAW AND ARGUMENT

         Mr. McBee argues that his Ohio conviction for abduction no longer qualifies as a predicate offenses to support his armed career criminal designation under 18 U.S.C. § 924(e) (the “ACCA”). This Court agrees.

         A grand jury indicted Mr. McBee on two counts for (1) possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841 (Count 1), and (2) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(e) (Count 2). Mr. McBee pled guilty to the indictment with a written plea agreement. The plea agreement outlined that Mr. McBee would likely qualify as a career offender with a base offense level of 37 as to Count 1, and as an armed career criminal, requiring a mandatory minimum of 15 years on Count 2. Mr. McBee reserved the right to challenge both findings on appeal.

         Prior to Mr. McBee's sentencing hearing, the U.S. Probation Office prepared a presentence investigation report (“PSR”). The PSR identified three qualifying predicate offenses for the ACCA: (1) felonious assault; (2) burglary; and (3) abduction. All were Ohio offenses. The government subsequently cited to four qualifying offenses in its sentencing memorandum: (1) attempted felonious assault; (2) felonious assault; (3) burglary; and (4) abduction. These offenses served as predicates at sentencing to qualify Mr. McBee as an armed career criminal, as well as a criminal offender.

         The abduction offense initially had been indicted as a kidnapping with two firearm specifications. The kidnapping count charged that Mr. McBee “unlawfully and by force, threat or deception removed [M.L.] from the place where she was found or restrained her of her liberty for the purpose of facilitating the commission of a felony or the flight thereafter and/or terrorizing or inflicting serious physical harm on M.L.” (Doc. #46-1, p. 259.) The kidnapping charge was amended to abduction under R.C. 2905.02. The amendment did not specify a subsection under R.C. 2905.02.

         During sentencing on August 6, 2008, this Court found that Mr. McBee was both a career offender and an armed career criminal. The Court sentenced him to 262 months on both counts to run concurrently. Mr. McBee timely appealed the career offender application. The Sixth Circuit denied the appeal.

         Mr. McBee filed a motion to vacate, set aside or correct the judgment in June 2014, more than four years after his appeal was denied. In December 2015, he filed a motion for the appointment of counsel to amend his petition to assert claim under Johnson v. United States__, U.S.__, 135 S.Ct. 2551, 2015 WL 2473450 (June 26, 2015). This Court granted the motion to amend. Mr. McBee filed an amended petition in March 2016 to timely assert a claim under Johnson. The government argues, and Mr. McBee appears to concede, that any other claims in Mr. McBee's petition are untimely. Accordingly, those claims are denied. Only Mr. McBee's claim under Johnson remains before the Court.

         Under Johnson, Mr. McBee argues that he no longer possesses the requisite predicate offenses to qualify as an armed career criminal under the ACCA. The ACCA establishes a 15-year mandatory minimum sentence for a criminal defendant charged as a felon in possession of a firearm who had at least 3 prior convictions that are either (1) serious drug offenses or (2) violent felonies. 18 U.S.C. § 924(e). A violent felony had three different possible definitions:

(1) an offense that “has as an element the use, attempted use, or threatened use of physical force” (the ...

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