United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.
matter is before the Court on Defendant James Stewart's
Motion to Vacate and Set Aside Judgment of Conviction and
Sentence under 28 U.S.C. § 2255. (Doc. 259). For the
following reasons, the Court Grants
Defendant's Motion, Vacates the Judgment
on Count Four and Corrects Defendant's
Sentence as follows.
19, 2007, the Grand Jury returned a Superseding Indictment
charging Defendant with Conspiracy to Commit Armed Bank
Robbery, in violation of 18 U.S.C. §§ 2113(a) and
(d) (Count One); Armed Bank Robbery, in violation of 18
U.S.C. §§ 2113(a), (d) and 2 (Count Two); and two
counts Brandishing and Discharging a Firearm During a Crime
of Violence, in violation of 18 U.S.C. §§
924(c)(1)(A) and 2 (Counts Three and Four). (Doc. 11).
Defendant proceeded to trial on each of the four counts.
November 13, 2007, a Jury convicted Defendant on Count One.
The Court declared a mistrial on Counts Two through Four. On
retrial, another Jury convicted Defendant on Counts Two,
Three and Four.
September 4, 2008, the Court sentenced Defendant to a total
of 60 years as follows: 60 months on Count One; 300 months on
Count Two to run concurrently with Count One; 420 months on
Count Three; and 84 months on Count Four to run concurrently
with Count Three. (Doc. 148). Counts Three and Four were to
run consecutive to Counts One and Two. (Id.).
December 6, 2010, the Sixth Circuit affirmed Defendant's
Sentence. Defendant filed a motion under § 2255 on
August 26, 2011, which the Court denied on May 6, 2012. The
Sixth Circuit affirmed.
April 18, 2019, Defendant moved in the Sixth Circuit for a
second or successive § 2255 motion. (Doc. 258-1).
Defendant based his request on Sessions v. Dimaya,
138 S.Ct. 1204 (2018), where the Supreme Court invalidated
the residual clause definition of “crime of
violence” in 18 U.S.C. § 16(b) as
unconstitutionally vague. According to Defendant, §
924(c)(3)(B) is similarly vague and therefore
unconstitutional. During the pendency of Defendant's
request, the Supreme Court issued a decision in United
States v. Davis, 139 S.Ct. 2319 (2019) which addressed
the issue at hand. In Davis, the Court invalidated
§ 924(c)(3)(B) as unconstitutionally vague. Based on
Davis, the Sixth Circuit allowed Defendant to file a
second § 2255 motion.
filed his Motion on November 19, 2019. He asked the Court to
vacate the conviction and sentence on Count Four. (Doc. 259).
The Government filed its Response on December 11, 2019,
agreeing that Defendant is entitled to relief under §
2255. (Doc. 263). The Government however, argued that relief
should come in the form of a corrected sentence rather than a
full-resentencing. (Id.). Defendant filed his Reply
on December 13, 2019 arguing that a resentencing was the
proper relief. (Doc. 264)
Law and Analysis
Standard of Review
2255 of Title 28, United States Code, provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral ...