Filed: Jul. 06, 2016
Latest Update: Jul. 06, 2016
Summary: ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL Re: Dkt. No. 1742 MAXINE M. CHESNEY , District Judge . Before the Court is defendant Raymon D. Hill's Motion for Appointment of Counsel, filed June 17, 2016, by which he seeks appointment of counsel to represent him for the purpose of filing a motion to challenge his sentence. See 28 U.S.C. 2255. Specifically, defendant seeks counsel for purposes of challenging the constitutionality of the "`residual clause' of U.S. Sentencing
Summary: ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL Re: Dkt. No. 1742 MAXINE M. CHESNEY , District Judge . Before the Court is defendant Raymon D. Hill's Motion for Appointment of Counsel, filed June 17, 2016, by which he seeks appointment of counsel to represent him for the purpose of filing a motion to challenge his sentence. See 28 U.S.C. 2255. Specifically, defendant seeks counsel for purposes of challenging the constitutionality of the "`residual clause' of U.S. Sentencing ..
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ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL
Re: Dkt. No. 1742
MAXINE M. CHESNEY, District Judge.
Before the Court is defendant Raymon D. Hill's Motion for Appointment of Counsel, filed June 17, 2016, by which he seeks appointment of counsel to represent him for the purpose of filing a motion to challenge his sentence. See 28 U.S.C. § 2255. Specifically, defendant seeks counsel for purposes of challenging the constitutionality of the "`residual clause' of U.S. Sentencing Guidelines Manual § 4B1.2(a)." (See Def.'s Mot. at 1.) Having read and considered the motion, the Court rules as follows.
The "residual clause" in the United States Sentencing Guidelines is found in the guideline defining the term "crime of violence" and is set forth below in italics:
The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
See U.S.S.G. § 4B1.2(a) (emphasis added); United States v. Willis, 795 F.3d 986, 996 (9th Cir. 2015). The term "crime of violence," in turn, is found in the guideline defining "career offender," see U.S.S.G. § 4B1.1(a), and in the guideline setting forth the points attributable to the various types of prior sentences comprising a defendant's criminal history, see U.S.S.G. § 4A1.1(e).
Here, in calculating the guideline range applicable to defendant, neither the Presentence Investigation Report prepared by the United States Probation Office nor either of the sentencing memoranda filed by the parties made any reference to or otherwise relied on the residual clause, nor did the Court in sentencing defendant refer to or in any other manner rely on it. Consequently, any challenge to defendant's sentence based on its constitutionality would fail. Under such circumstances, the Court finds defendant is not entitled to appointment of counsel. See 18 U.S.C. § 2006A(a)(2)(B) (providing court may appoint counsel for indigent defendant seeking relief under § 2255 only where "the interests of justice so require").
Accordingly, defendant's motion is hereby DENIED.
IT IS SO ORDERED.
