Filed: May 20, 2016
Latest Update: May 20, 2016
Summary: ORDER KRISTI K. DuBOSE , District Judge . This action is before the Court on a Joint Motion to Vacate Sentence Pursuant to 28 U.S.C. 2255 filed on behalf of Defendant/Petitioner Murria Will Parker. (Doc. 26). 1 The parties agree that the Parker's prior kidnapping conviction does not qualify as a predicate offense under the Armed Career Criminal Act ("ACCA"). Thus, the Petitioner is not subject to an enhanced sentence under the ACCA. On February 3, 1993, following his conviction of poss
Summary: ORDER KRISTI K. DuBOSE , District Judge . This action is before the Court on a Joint Motion to Vacate Sentence Pursuant to 28 U.S.C. 2255 filed on behalf of Defendant/Petitioner Murria Will Parker. (Doc. 26). 1 The parties agree that the Parker's prior kidnapping conviction does not qualify as a predicate offense under the Armed Career Criminal Act ("ACCA"). Thus, the Petitioner is not subject to an enhanced sentence under the ACCA. On February 3, 1993, following his conviction of posse..
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ORDER
KRISTI K. DuBOSE, District Judge.
This action is before the Court on a Joint Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 filed on behalf of Defendant/Petitioner Murria Will Parker. (Doc. 26).1 The parties agree that the Parker's prior kidnapping conviction does not qualify as a predicate offense under the Armed Career Criminal Act ("ACCA"). Thus, the Petitioner is not subject to an enhanced sentence under the ACCA.
On February 3, 1993, following his conviction of possessing a firearm after having "been convicted . . . of a crime punishable by imprisonment for a term exceeding one year" under 18 U.S.C. § 922(g)(1), Parker was sentenced to 235 months imprisonment and a 5 year term of supervised release. He received the enhancement. Absent this enhancement, the maximum sentence possible for the crime of conviction is 10 years. See 18 U.S.C. § 924(a)(2).
Recalculation of Parker's guideline range without the ACCA enhancement results in a guideline range sentencing range of 100 to 120 months and supervised release term of 3 years. (See attached). In Johnson v. United States, the Supreme Court held the residual clause of the ACCA was unconstitutional. 135 S.Ct. 2251 (2015). In Welch v. United States, the Supreme Court held that Johnson applied retroactively to cases on collateral review. 136 S.Ct. 1257 (2016). In Mays v. United States, the Court of Appeals for the Eleventh Circuit held that Johnson applied "retroactively in the first post-conviction context." ___ Fed. 3d. ___, 2016 WL 1211420, at *1 (11th Cir. March 29, 2016) (per curiam).
Petitioner has served approximately 23 years, which exceeds the 10-year statutory maximum sentence for the offense in the instant case. Because the Petitioner has served the maximum sentence, the Court can see no reason to hold a new sentencing hearing. The Court also notes that the joint motion specifically requests immediate entry of an amended judgment rather than a resentencing hearing. (Doc. 28 at 9-11).
Upon consideration, and for the reasons discussed in the Joint Motion (Doc. 28), Petitioner's motion is GRANTED, and the sentence imposed in this case is VACATED.
DONE and ORDERED.
UNITED STATES PROBATION OFFICE
SOUTHERN DISTRICT OF ALABAMA
MEMORANDUM
Jennifer M. Childress, Chief U. S. Probation Officer
Date: May 20, 2016
Reply to Attn of: Alan R. Watkins, Sentencing Guideline Specialist, (251) 441-6766
Subject: Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255
Murria Will Parker, 92-00173-001 (KKD)
To: U. S. District Judge, Kristi K. DuBose
Original Sentence: Defendant was sentenced to the custody of the Bureau of Prisons for a term of 235
months, as to Count 1. Upon release from imprisonment, the defendant shall be placed on
supervised release for a term of 5 years, as to Count 1. No fine was imposed, as the
defendant is unable to pay. A $50 special monetary assessment was imposed. The
defendant was remanded to the custody of the U.S. Marshal.
The Probation Office has recalculated the defendant's guideline range as follows
Original Range w/ New Range w/out
ACCA ACCA
Base Offense Level: 24 24
Specific Offense Characteristics: None None
Chapter 3 Adjustments: None None
Chapter Four Enhancements: 33 None
Acceptance of Responsibility: None None
Total Offense Level: 33 24
Criminal History Category: VI VI
Guideline Range: 235 to 293 100 to 120
Supervised Release Term 5 years 3 years
Time Served
The defendant has been in federal custody in excess of the statutory maximum sentence of ten years. Consequently, the defendant would be eligible for immediate release even if sentenced at the high end of the guideline range. The probation officer would recommend a sentence of time served, so that the defendant will not receive credit toward any possible revocation sentence in the future.
