United States District Court, S.D. Ohio, Western Division
AND ENTRY ADOPTING IN PART AND REJECTING IN PART UNITED
STATES MAGISTRATE JUDGE'S SUPPLEMENTAL REPORT AND
RECOMMENDATIONS (DOC. #112) AND SECOND SUPPLEMENTAL REPORT
AND RECOMMENDATIONS (DOC. #115); SUSTAINING IN PART AND
OVERRULING IN PART DEFENDANT'S OBJECTIONS THERETO (DOCS.
##113, 116); SUSTAINING DEFENDANT'S MOTION TO VACATE
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. #94);
VACATING JUDGMENT (DOC. #74); ORDERING AMENDED PRESENTENCE
INVESTIGATION REPORT; CONFERENCE CALL SET FOR TUESDAY,
SEPTEMBER 19, 2017, AT 8:30 A.M.
H. RICE UNITED STATES DISTRICT JUDGE.
the Supreme Court issued its decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), holding that the
residual clause in the Armed Career Criminal Act
("ACCA"), 18 U.S.C. §924(e)(2)(B)(ii), was
unconstitutionally vague, Defendant Mickey Fugate filed a
Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255,
matter is currently before the Court on United States
Magistrate Judge Merz's Supplemental Report and
Recommendations, Doc. #112, Second Supplemental Report and
Recommendations, Doc. #115, and Fugate's Objections
thereto, Docs. ##113, 116. For the reasons set forth below,
those Objections are sustained in part and rejected in part,
and said judicial filings are adopted in part and rejected in
part. Because the sentence previously imposed is no longer
constitutional, the Court sustains Fugate's Motion to
Vacate Sentence Pursuant to 28 U.S.C. § 2255, and will
set the matter for resentencing.
Background and Procedural History
Plea and Sentence
First Superseding Indictment in this case, Doc. #60, charges
Fugate with five counts stemming from a November 14, 2009,
armed robbery of a convenience store: (1) a Hobbs Act robbery
(Interference with Commerce by Threats or Violence), in
violation of 18 U.S.C. § 1951(a); (2) Use of a Firearm
During and In Relation to a Crime of Violence (robbery), in
violation of 18 U.S.C. §§924(c)(1)(A) and (C); (3)
Possession of a Firearm and Ammunition Subsequent to Three or
More Violent Felony Convictions, in violation of 18 U.S.C.
§§922(g)(1), 924(a)(2) and 924(e) (the Armed Career
Criminal Act or "ACCA"); (4) Tampering with a
Witness by Force or Threat of Force, in violation of 18
U.S.C. § § 1512 (a)(2)(C) and (a)(3)(B) and (C);
and (5) Use of a Firearm During and in Relation to a Crime of
Violence (witness tampering), in violation of 18 U.S.C.
§ 1924(c)(1)(A) and (C).
August 28, 2013, Mickey Fugate agreed to plead guilty to
Counts One and Three. Doc. #66. A conviction on Count One
subjected him to a term of imprisonment of up to 20 years,
and up to three years of supervised release. A conviction on
Count Three, the ACCA charge, subjected him to a mandatory
minimum sentence of fifteen years, and up to life
imprisonment, plus a term of supervised release of up to five
years. The ACCA provides as follows:
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
18 U.S.C. § 924(e)(1). The ACCA, as applied at the time
of Fugate's sentencing, defined a "violent
felony" as "any crime punishable by imprisonment
for a term exceeding one year" that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another . . .
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
italicized portion of subsection (ii) is known as the
Statement of Facts attached to the plea agreement, Doc. #66,
indicates that Fugate was previously convicted of five
"violent felonies": (1) armed bank robbery; (2) use
of a firearm in a crime of violence; (3) attempted escape;
and (4) two burglaries. Accordingly, the ACCA applied,
subjecting Fugate to a fifteen-year mandatory minimum
sentence on Count Three.
to Federal Rule of Criminal Procedure 11 (c)(1)(C), the
parties entered into a plea agreement, agreeing that an
appropriate disposition would include "at least 20 years
up to 30 years imprisonment (specifically, at least 20 years
up to 30 years on count three; at least one day up to 20
years on count one to be served concurrently with count
three)." Doc. #66, PagelD#539. The government agreed to
dismiss the other three counts, including the two
§924(c) counts that would have each required a 25-year
January 13, 2014, Fugate was sentenced to 188 months on Count
One and 300 months on Count Three, said sentences to be
served concurrently to each other, but consecutively to the
concurrent sentences imposed in two earlier federal
cases. He was also sentenced to a three-year term
of supervised release on Count One and a five-year term on
Count Three, to be served concurrently, and ordered to pay
$297.00 in restitution to the convenience store. Doc. #74.
The sentence was affirmed on appeal. United States v,
Fugate, 599 F.App'x 564 (6th Cir. 2014).
that year, while Fugate's petition for certiorari was
still pending, the Supreme Court held that the residual
clause of the ACCA was unconstitutionally vague.
Johnson, 135 S.Ct. 2551 (2015). Because
Johnson announced a new rule of constitutional law,
it applied retroactively to cases on collateral review.
Welch v. United States, 136 S.Ct. 1257 (2016);
In re Watkins, 810 F.3d 375 (6th Cir. 2015).
Motion to Vacate Sentence
filed a Motion to Vacate Sentence Pursuant to 28 U.S.C.
§2255, Doc. #94, arguing that, because three of his five
prior violent felonies (the two burglaries and the escape
charge) were predicated on the ACCA's residual clause, he
no longer qualified as an armed career criminal, and was no
longer subject to the fifteen-year mandatory minimum sentence
on Count Three. In short, prior authority to the contrary was
no longer applicable. See United States v. Coleman,
655 F.3d 480, 483 (6th Cir. 2011) (holding that Ohio's
burglary statute constituted a "violent felony"
under the ACCA's residual clause); United States v.
Hughes, 602 F.3d 669, 677 (5th Cir. 2010) (holding that
attempted escape qualifies as a "violent felony"
under the ACCA's residual clause).
United States v. Barbour, 750 F.3d 535 (6th Cir.
2014), Fugate further argued that, because the two remaining
violent felonies, i.e., armed robbery and use of a
firearm, were not "committed on occasions different from
one another, " see 18 U.S.C. §924(e)(1),
they should count as just one offense.
ACCA no longer applied, the applicable statutory maximum
sentence on Count Three was 10 years. See 18 U.S.C.
§ 924(a)(2). Given that Fugate was sentenced to 300
months, more than double the statutory maximum, on Count
Three, he argued that his sentence must be vacated so that he
could be resentenced.
Answer to Fugate's motion, Doc. #100, the Government
argued that, because the two burglaries were of residences
with identified street addresses, they did not fall under the
residual clause, but qualified as generic burglaries under
the "enumerated offenses" portion of 18 U.S.C.
§924(e)(2)(B)(ii). According to the Government, because
Fugate had conceded that he had at least one other
"violent felony" conviction (either the armed bank
robbery or the use of a firearm), he still qualified as an
armed career criminal.
thereafter, the Supreme Court decided the case of Mathis
v. United States,136 S.Ct. 2243 (2016), rendering
meritless the Government's argument that, because the
burglaries were of residences with identified street
addresses, they qualified as generic burglaries.
Mathis held that, in determining whether a prior
burglary qualifies as a predicate enumerated offense under
the ACCA, the court must focus only on whether the
elements of the crime of conviction are the same as,