United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
Aaron Polster United States District Judge
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
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).
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).
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.
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,
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.
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.
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 ...