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United States v. Tunstall

United States District Court, S.D. Ohio, Western Division, Dayton

June 16, 2017


          Walter Herbert Rice District Judge.


          Michael R. Merz United States Magistrate Judge.

         This § 2255 case is before the Court for decision on the merits. Previously the Magistrate Judge had recommended the Motion to Vacate be dismissed (ECF Nos. 63, 66, 70), but withdrew those Reports on May 9, 2017, and ordered the Government to answer on the merits (ECF No. 77, reported at United States v. Tunstall, 2017 U.S. Dist. LEXIS 70635 (S.D. Ohio 2017)).

         Procedural History

         On August 23, 2000, Defendant Tunstall pleaded guilty, pursuant to a plea agreement, to one count of armed bank robbery in violation of 18 U.S.C. § 2113 and one count of discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(Plea Agreement, ECF No. 11; Minute Entry, ECF No. 12). After reviewing a Presentence Investigation Report (“PSR”), District Judge Rice sentenced Tunstall to two terms of 120 months each to be served consecutively (Minutes, ECF No. 27; Judgment, ECF No. 30). Tunstall appealed, but his conviction was upheld. United States v. Tunstall, Case No. 01-3515, 49 Fed.Appx. 581, 2001 U.S. App. LEXIS 22458 (6th Cir. Oct 24, 2002)(copy at ECF No. 39). Tunstall filed an initial Motion to Vacate on January 6, 2004 (ECF No. 42) which Judge Rice dismissed on recommendation of Magistrate Judge Ovington (ECF Nos. 47, 48, 49).

         With the assistance of the Federal Public Defender, Tunstall filed his instant second-in-time § 2255 Motion on June 3, 2016 (ECF No. 56). He sought and received permission of the Sixth Circuit to proceed on that Motion (ECF Nos. 57, 62). However, as instructed by the circuit court, this Court further stayed merits consideration pending a decision by the Supreme Court in Beckles v. United States. When that decision was announced, the Magistrate Judge vacated the stay and recommended dismissal, based on his reading of Beckles v. United States, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017)(ECF No. 63). Tunstall's counsel finally persuaded the Magistrate Judge that Beckles applied only to the Sentencing Guidelines as they became advisory after United States v. Booker, 543 U.S. 220 (2005). Because Tunstall was sentenced before Booker, the Magistrate Judge withdrew his prior Reports and Recommendations and ordered the Government to answer (ECF No. 77). The Government has done so (ECF No. 78), Tunstall has replied (ECF No. 80), and the Motion to Vacate is ripe for decision on the merits.


         Mr. Tunstall seeks relief from his classification as a career offender under the pre-Booker Sentencing Guidelines on the basis of Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015[1]), and United States v. Pawlak, 822 F.3d 902 (6th Cir. May 13, 2016). Johnson declared the so-called residual clause of the Armed Career Criminal Act (“ACCA”) unconstitutionally vague; Pawlak applied Johnson to the parallel residual clause of the Sentencing Guidelines.

         Tunstall's Predicate Convictions

         18 U.S.C. § 924(e), the Armed Career Criminal Act, reads in pertinent part:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2) As used in this subsection- * * *
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [elements clause]; or (ii)
is burglary, arson, or extortion, involves use of explosives [enumerated offenses clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [residual clause];

         The Sentencing Guidelines definition of a career offender parallels this definition, but requires only two qualifying predicate offenses. Tunstall asserts that one of the prior convictions used as a predicate - his 1994 conviction for discharging a firearm at or into an occupied structure under Ohio Revised Code § 2923.61 -- “no longer qualifies to enhance Tunstall's sentence as a Career Offender.” (§ 2255 Motion, ECF No. 56, PageID 340.) Tunstall asserts that the Sixth Circuit had previously held “that this offense qualified as a crime of violence only under the residual clause of the Guidelines.” Id. at PageID 341, citing United States v. Ruvalcaba, 627 F.3d 218, 222 (6th Cir. 2010).

         Tunstall further asserts that his 1997 aggravated burglary conviction is not a qualified predicate offense because

In 1997, one could violate [Ohio Revised Code § ] 2911.11(A) in one of three ways: the offender “by force, stealth or deception” trespasses into an “occupied structure” to commit a criminal offense, and the any of the following occur: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another; (2) The offender has a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control. The second prong of this statute does not contain an element of the use of force, and the statute is broader than the generic form of burglary because the term “occupied structure” is broader than the generic term. Further, Ohio's aggravated burglary statute has been determined to qualify under the residual clause of the ACCA. See United States v. Cooper, 302 F.3d 592, 597 (6th Cir. 2002).


         These two convictions are the convictions referenced in the PSR as qualifying Mr. Tunstall for a career ...

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