Filed: Jun. 24, 2016
Latest Update: Jun. 24, 2016
Summary: ORDER MARTIN REIDINGER , District Judge . THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under 28 U.S.C. 2255 and Motion for Immediate Release [Doc. 1] and the Government's Response in Support [Doc. 3]. Petitioner pleaded guilty to possession of a firearm by a previously convicted felon in violation of 18 U.S.C. 922(g)(1). Petitioner was found to be an armed career criminal and sentenced accordingly pursuant to the Armed Career Criminal Act, 18 U.S.C. 924
Summary: ORDER MARTIN REIDINGER , District Judge . THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under 28 U.S.C. 2255 and Motion for Immediate Release [Doc. 1] and the Government's Response in Support [Doc. 3]. Petitioner pleaded guilty to possession of a firearm by a previously convicted felon in violation of 18 U.S.C. 922(g)(1). Petitioner was found to be an armed career criminal and sentenced accordingly pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(..
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ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate Sentence under 28 U.S.C. § 2255 and Motion for Immediate Release [Doc. 1] and the Government's Response in Support [Doc. 3].
Petitioner pleaded guilty to possession of a firearm by a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). Petitioner was found to be an armed career criminal and sentenced accordingly pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA").
Petitioner now seeks relief from his 168-month sentence under 28 U.S.C. § 2255, arguing that he was improperly sentenced as an armed career criminal because he does not have three prior convictions for violent felonies within the meaning of the ACCA. Petitioner relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In its response, the Government concedes that, in light of Johnson, Petitioner no longer qualifies as an armed career criminal because he no longer has three predicate convictions. Thus, Petitioner's sentence exceeds the 120-month maximum term of imprisonment that applies to Petitioner's 18 U.S.C. § 922(g)(1) conviction without the ACCA enhancement. [Doc. 3].
For the reasons stated in the Government's Response, the Court will grant Petitioner's motion to vacate and resentence the Petitioner to a term of 120 months' imprisonment.1
Accordingly, IT IS, THEREFORE, ORDERED that the Petitioner's Motion to Vacate [Doc. 1] is GRANTED.
IT IS FURTHER ORDERED that the Petitioner's sentence of 168 months' imprisonment is hereby VACATED, and the Petitioner is hereby resentenced to a term of 120 months' imprisonment with a subsequent term of supervised release of three (3) years. All other remaining provisions of the Petitioner's Judgment [Criminal Case No. 1:06-cr-00268-MR-1, Doc. 32] shall remain in full force and effect.
The Clerk of Court is directed to certify copies of this Order to counsel for the Government, counsel for the Petitioner, the United States Bureau of Prisons, the United States Marshals Service, and the United States Probation Office. The Clerk of Court is further directed to close this civil case.
IT IS SO ORDERED.
JUDGMENT IN CASE
DECISION BY COURT. This action having come before the Court and a decision having been rendered;
IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the Court's June 27, 2016 Order.
