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United States v. Carpenter

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

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SAVOY BRAXTON CARPENTER, Defendant.

          District Judge Susan J. Dlott

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This criminal case is before the Court on Defendant Carpenter's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 109). Rule 4(b) of the Rules Governing ' 2255 Proceedings provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States to file an answer, motion, or other response within a fixed time, or take other action the judge may order.

         Carpenter pleads one ground for relief, to wit, “18 U.S.C. § 924(c) is unconstitutional as applied to Savoy Carpenter.” (Motion, ECF No. 109, PageID 662).

         Procedural History

         Savoy Carpenter was indicted by the grand jury for this District on March 4, 2015, for alleged violations of 18 U.S.C. §§ 1951, 1952 (Counts 1 and 2) and using, brandishing, and carrying a firearm during and in relation to the violation of the Hobbs Act of 1946 charged in Count 2, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3) (Indictment, ECF No. 3, PageID 5-6). On April 23, 2015, the United States filed an Information containing eight counts and naming Carpenter in Counts 1, 5, 6, 7, and 8 (ECF No. 20). On the same date, Carpenter entered into a Plea Agreement with the United States under which he would plead guilty to all of those counts (ECF No. 21). The parties agreed that an appropriate sentence in the case was 384 months imprisonment. Id. at PageID 53. After receiving and reviewing a Presentence Investigation Report form the U.S. Probation Office, District Judge Susan J. Dlott sentenced Carpenter to 300 months imprisonment (i.e., seven years less than the agreed sentence) (Judgment, ECF No. 73, PageID 219).

         Despite the appeal waiver in the Plea Agreement (ECF No. 21, Page ID 52), Carpenter appealed to the U.S. Court of Appeals for the Sixth Circuit. That Court dismissed the appeal on the Government's motion, concluding the appeal waiver was valid and binding and covered the issues Carpenter was raising. United States v. Carpenter, No. 16-3534 (6th Cir. Apr. 25, 2017) (unpublished; copy at ECF No. 99). As part of his appeal, Carpenter argued that 18 U.S.C. § 924(c) was unconstitutionally vague. As to that claim, the Sixth Circuit held:

Finally, Carpenter argues that his vagueness challenge to § 924(c) falls within the exception to the appeal waiver for changes to the Sentencing Guidelines made after the conviction and which are expressly made retroactive. We disagree. There has been no holding by the Supreme Court that the mandatory-minimum-sentence provisions of § 924(c)(1) are void for vagueness. We have rejected a claim that the definition of a “crime of violence” in § 924(c)(3)(B) is void for vagueness. United States v. Taylor, 814 F.3d 340, 375-79 (6th Cir. 2016), petition for cert. filed, (Oct. 6, 2016)(No. 16-6392). And we recently held that a § 1951 robbery qualifies as a crime of violence under the “elements” clause of § 924(c)(3)(A). United States v. Gooch, 850 F.3d 285, 290-92 (6th Cir. 2017). No. changes have been made to the Sentencing Guidelines affecting Carpenter's mandatory minimum sentences under § 924(c)(1).

Id. at PageID 443. Carpenter did not seek review in the Supreme Court, but filed the instant Motion within the time allowed by 28 U.S.C. § 2255(f) (ECF No. 109).

         Analysis

         Carpenter claims the law applicable to his case is changed by the decision of the United States Supreme Court in Sessions v. Dimaya, 584 U.S. ----, 138 S.Ct. 1204, __ L.Ed.2d __ (2018), which held that the residual clause of the federal criminal code's definition of “crime of violence, ” -- 18 U.S.C. § 16(b) -- is unconstitutionally vague. Carpenter's assertion is that “[t]he language of the residual clause contained in 18 U.S.C.A. § 16(b) is identical, for all intents and purposes, to the language of the residual clause contained in Title 18 U.S.C. § 924(c).” (Motion, ECF No. 109, PageID 674).

         The relevant portions of § 924(c) read:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such ...

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