MEMORANDUM DECISION AND ORDER GRANTING PETITIONER'S MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. 2255

TED STEWART, District Judge.

This matter is before the Court on Petitioner Brett Dillon Lindsay's Motion to Correct Sentence Under 28 U.S.C. § 2255. For the reasons discussed below, the Court will grant the Motion.

I. BACKGROUND

On October 17, 2012, Petitioner was charged with being a felon in possession of a firearm. Petitioner pleaded guilty on January 29, 2013.

The Presentence Report identified one of Petitioner's prior convictions as a crime of violence under United States Sentencing Guideline ("USSG") § 4B1.2, a 2009 Utah conviction for failing to stop at the command of a police officer. This resulted in a base offense level of 20 instead of 14. With a total offense level of 21 and a criminal history category of VI, Petitioner had a guideline range of 77 to 96 months. The Court imposed a sentence of 64 months, to account for time spent in custody that would not be credited to his federal sentence. Petitioner did not file a direct appeal.

Petitioner filed the instant Motion on June 21, 2016. Petitioner argues that his sentence is unconstitutional in light of Johnson v. United States.1 In particular, Petitioner contends that his prior conviction for failure to stop can no longer be considered a crime of violence.

II. DISCUSSION

The Supreme Court in Johnson considered the validity of the Armed Career Criminal Act ("ACCA"). The ACCA, 18 U.S.C. § 924(e), provides for increased penalties for a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense. The Act defines "violent felony" as:

The first part of the definition—"has as an element the use, attempted use, or threatened use of physical force against the person of another"—is known as the force clause. The second portion—"burglary, arson, extortion, or crimes involving the use of explosives"—is the enumerated offenses provision. The last clause—"crimes that otherwise involve conduct that presents a serious potential risk of physical injury to another"—is called the residual clause. In Johnson, the Supreme Court held that the residual clause was unconstitutionally vague.3 The Supreme Court in Welch v. United States,4 held that Johnson's constitutional holding applied retroactively to cases on collateral review.

The Sentencing Guidelines provide for several sentencing enhancements for crimes constituting "crimes of violence." Relevant here, USSG § 2K2.1 calculates a defendant's base offense level depending on how many prior convictions the defendant sustained for "either a crime of violence or a controlled substance offense." "Crime of violence" is, in turn, defined by § 4B1.2. Section 4B1.2(a) defines a "crime of violence" as:

The Tenth Circuit has held that the "`crime of violence' definition set forth in . . . § 4B1.2, is virtually identical to the definition of a `violent felony'" contained in the ACCA.6 Thus, the Tenth Circuit has applied the Supreme Court's "ACCA `violent felony' analysis" to interpret "§ 4B1.2's definition of `crime of violence.'"7 Importantly, after Johnson, the Tenth Circuit held that § 4B1.2(a)(2)'s residual clause is unconstitutionally vague.8 However, the Tenth Circuit has not directly addressed whether Johnson's application to the Guidelines applies retroactively to petitioners seeking collateral review.

The Supreme Court recently granted certiorari in Beckles v. United States.9 In Beckles, the Court agreed to resolve the question of whether Johnson applies to the residual clause of USSG § 4B1.2 and, if so, whether it applies retroactively.

The government concedes that Petitioner's previous conviction no longer qualifies as a crime of violence under Johnson. However, the government has filed a Motion to Stay, seeking a stay of this case pending the Supreme Court's ruling in Beckles. The government further argues that Johnson should not apply retroactively to the Guidelines and that Petitioner has procedurally defaulted on his claim by failing to challenge the enhancement before this Court or on direct appeal.

The Court has previously considered and rejected the government's arguments.10 For substantially the same reasons, the Court rejects these arguments here. Therefore, the Court will grant Petitioner's Motion.

III. CONCLUSION

It is therefore

ORDERED that the government's Motion to Stay (Docket No. 3) is DENIED. It is further

ORDERED that Petitioner's Motion to Correct Sentence Under 28 U.S.C. § 2255 (Docket No. 1 in Civil Case No. 2:16-CV-664) is GRANTED. The Clerk of the Court is directed to enter Judgment in favor of Petitioner and close this case.

The Court will set this matter for resentencing by separate notice. All further filings should be done in the underlying criminal case.