Brown v. U.S., 2:11-CR-30-FTM-29MRM (2016)
Court: District Court, M.D. Florida
Number: infdco20160715e60
Visitors: 28
Filed: Jul. 15, 2016
Latest Update: Jul. 15, 2016
Summary: OPINION AND ORDER JOHN E. STEELE , Senior District Judge . This matter comes before the Court on petitioner's pro se Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #59) and Memorandum in Support (Cv. Doc. #2; Cr. Doc. #60) filed on May 16, 2016. The Court appointed the Federal Public Defender's Office to represent petitioner pursuant to Omnibus Order in Re: Amendment 782, United States Sentencing Guidelin
Summary: OPINION AND ORDER JOHN E. STEELE , Senior District Judge . This matter comes before the Court on petitioner's pro se Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #59) and Memorandum in Support (Cv. Doc. #2; Cr. Doc. #60) filed on May 16, 2016. The Court appointed the Federal Public Defender's Office to represent petitioner pursuant to Omnibus Order in Re: Amendment 782, United States Sentencing Guideline..
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OPINION AND ORDER
JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on petitioner's pro se Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #59) and Memorandum in Support (Cv. Doc. #2; Cr. Doc. #60) filed on May 16, 2016. The Court appointed the Federal Public Defender's Office to represent petitioner pursuant to Omnibus Order in Re: Amendment 782, United States Sentencing Guidelines, 6:14-mc-78-ACC (Cr. Doc. #63) on June 10, 2016, and the government filed a Response to motion (Cv. Doc. #10) on July 14, 2016, agreeing that the Motion Under 28 U.S.C. § 2255 should be granted and the sentence vacated in favor of resentencing.
On April 18, 2016, in Welch v. United States, 136 S.Ct. 1257 (2016), the United States Supreme Court determined that the residual clause of the ACCA was indeed unconstitutionally vague, and that Johnson announced a substantive rule that applied retroactively on collateral review. In light of this decision, and because the government concedes it applies to remove the Armed Career Criminal Act enhancement in petitioner's case, the Court will grant relief and vacate the underlying criminal judgment. The Court will appoint the Federal Public Defender's Office for resentencing.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #59) is GRANTED.
2. The Judgment in a Criminal Case (Cr. Doc. #44) is vacated.
3. The Clerk shall appoint the Federal Public Defender's Office to represent defendant for purposes of a full re-sentencing. The United States Marshal's Office shall facilitate and effectuate the transportation of defendant for re-sentencing. Defendant shall be available in Fort Myers on or before October 22, 2016. The United States Probation Office shall issue a new Presentence Report and distribute copies of the Presentence Investigation Report to appointed counsel, the Office of the United States Attorney, and defendant on or before October 12, 2016. The parties shall appear for a full re-sentencing before the undersigned on, Tuesday, November 1, 2016, at 10:00 a.m., Courtroom A, Sixth Floor, Fort Myers, Florida. A separate notice will issue.
4. The Clerk of the Court shall enter judgment in favor of petitioner and close the civil file. The Clerk is further directed to place a copy of the civil Judgment in the criminal file and to make a notation that the criminal Judgment has been vacated.
DONE and ORDERED.
Source: Leagle
