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United States v. Latimore

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

September 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD LATIMORE, Defendant.

          OPINION AND ORDER

          Dan Aaron Polster United States District Judge

         MEMORANDUM

         Before the Court is Defendant Edward Latimore's Motion to Vacate under 28 U.S.C. § 2255 (“Motion”), Doc #: 95. For the following reasons, Latimore's Motion is GRANTED.

         1. FACTUAL BACKGROUND

         On July 1, 1993, Defendant was charged in a five-count indictment as follows: Count 1, Armed Bank Robbery in violation of Title 18 U.S.C. § 2113(a)(d); Count 2, Use of a Firearm in the Commission of a Felony in violation of Title 18 U.S.C. § 924(c); Count 3, Possession of a Firearm by a Convicted Felon in violation of Title 18 U.S.C. § 922(g)(1); Count 4, Assault on a Federal Officer in violation of Title 18 U.S.C. § 111; and Count 5, Use of a Firearm in the Commission of a Felony in violation of Title 18 U.S.C. § 924(c).

         On April 28, 1994, Defendant pled guilty pursuant to a plea agreement to Counts 1, 3, 4, and 5. (R.68: Plea Agreement). The terms of the plea agreement included the dismissal of Count 2. (Id.; R. 1: Indictment).

         On April 28, 1994, the Court sentenced Defendant to 262 months incarceration on Counts 1, 3, and 4, and a mandatory consecutive 60 months incarceration on Count 5.

         On April 10, 2019, Defendant filed a Motion to Vacate and Set Aside Judgment of Conviction and Sentence Under 28 U.S.C. § 2255, (R. 95: Motion to Vacate, PageID: 37-42), and on April 10, 2019, Defendant filed a Motion to Stay and Hold 28 U.S.C. § 2255 Motion in Abeyance pending the resolution of United States v. Davis, 139 S.Ct. 782 (2019). (R. 96: Motion to Stay, PageID: 43-45). This Court granted the Motion to Stay on April 11, 2019. (R. 97: Order, PageID: 46). The stay was lifted on June 25, 2019. (R. 99, PageID: 51). On August 23, 2019, Government filed a Response in Opposition to Defendant's Motion to Vacate and set Aside Judgment of Conviction and sentence Under 28 U.S.C. § 2255. (R. 102, PageID: 56-60). On August 28, 2019, Defendant filed a reply in support of Motion to Vacate and Set Aside Judgment of Conviction and sentence Under 28 U.S.C. § 2255. (R. 103, PageID: 62-65).

         II. ANALYSIS

         A defendant seeking to set aside his sentence pursuant to 28 U.S.C. § 2255 bears the burden of proof by a preponderance of the evidence. Packett v. United States, 738 Fed.Appx. 348, 352 (6th Cir.2018), citing Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). Defendant has met his burden.

         Defendant claims that his conviction for Count 5, Use of a Firearm in the Commission of a Felony in violation of Title 18 U.S.C. § 924(c), must be vacated. He argues that the predicate offense for this conviction, Count 4, Assault on a Federal Officer in violation of Title 18 U.S.C. § 111 (a), is no longer a crime of violence because the residual clause of 18 U.S.C. § 924(c)(3)(B) has been deemed unconstitutional. United States v. Davis, 139 S.Ct. 2319 (June 24, 2019). Doc #: 95. The Government contends that, while the indictment charges Defendant with a violation of 18 U.S.C. § 111 generally, it is clear by looking at the offense conduct, as well as the statutory penalties provided in the presentence investigation report, that Defendant was charged with and convicted of a violation of 18 U.S.C. § 111(b). Doc #: 102.

         The issue is straight forward. Did Latimore plead guilty to violating 18 U.S.C. § 111(a), which is not a crime of violence, or 111(b), which is? To determine this, we must look to the language found in Latimore's indictment. Count 5 of the indictment alleged:

On or about the 3rd day of June, 1993, in the Northern District of Ohio, Eastern Division, EDWARD F. LATIMORE, did knowingly use and carry a firearm, to wit: a 9mm Baretta Semi-automatic pistol, during and in relation to the commission of a crime of violence for which he may be prosecuted in a court of the United States, to wit: Title 18, Section 111, United States Code, as charged in ...

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