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Green v. United States

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

July 30, 2019

MYRON JEROME GREEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          James l. Graham Judge

          REPORT AND RECOMMENDATION

          Elizabeth P. Deavers Chief Magistrate Judge.

         Movant, a federal prisoner, has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. (ECF No. 31.) This case has been referred to the Undersigned pursuant to 28 U.S.C § 636(b) and Columbus' General Order 14-1 regarding assignments and references to United States Magistrate Judges.

         Pursuant to Rule 4(b) of the Rules Governing Section 2255 Cases in the United States District Court (“Rule 4(b)”), this Court must conduct a preliminary review and determine whether “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” If it does so appear, the motion must be dismissed. Id. Rule 4(b) allows for the dismissal of motions that state “only bald legal conclusions with no supporting factual allegations.” Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973) (quoting Sanders v. United States, 373 U.S. 1, 19 (1963)). For the following reasons, it plainly appears that Movant is not entitled to relief because he was convicted of a crime of violence. Accordingly, the Undersigned RECOMMENDS that the motion to vacate be DENIED and that this action be DISMISSED.

         Discussion

         Movant pleaded guilty, pursuant to a negotiated plea agreement, to two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d); carrying and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C § 924(c); and possession of a firearm by a convicted felon in and affecting commerce in violation of 18 U.S.C. § 922(g)(1). (ECF No. 17.) On November 9, 2010, Movant was sentenced to an aggregate term of 252 months of imprisonment to be followed by an aggregate term of five years supervised release. (ECF No. 25.) Movant did not file a direct appeal. On July 4, 2019, Movant filed his motion to vacate by placing it in the prison mailing system. (ECF No. 31.) In that motion, he contends that his § 924(c) convictions are invalid in light of the United States Supreme Court's recent ruling in United States v. Davis, ___ U.S. ___, 139 S.Ct. 2319, 2019 WL 2570623 (2019).

         In Davis, the Supreme Court considered the constitutionality of § 924(c), which “threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes.” Davis, 2019 WL 2570623, at *3. Specifically, the statute provides:

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 crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added). The statute further defines “crime of violence” as an offense that is a felony that

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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