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United States v. Fugate

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

September 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICKEY FUGATE, Defendant.

         DECISION 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.

          WALTER H. RICE UNITED STATES DISTRICT JUDGE.

         After 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, Doc. #94.

         This 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.

         I. Background and Procedural History

         A. Plea and Sentence

         The 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).

         On 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 years.

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 "residual clause."

         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.

         Pursuant 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 consecutive sentence.

         On 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.[1] 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).

         Later 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).

         B. Motion to Vacate Sentence

         Fugate 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).

         Citing 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.

         If the 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.

         In its 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).[2] 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.

         Shortly 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, or ...


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