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McBee v. United States

United States District Court, E.D. Tennessee, Knoxville

March 6, 2017

JACKIE W. MCBEE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Leon Jordan, United States District Judge

         On September 23, 2016, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 99]. The petition cited Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.].[1] The United States responded in support and urged that the Court reduce Petitioner's sentence to 120 months' incarceration and three years' supervised release-the maximum applicable to a non-ACCA offender [Doc. 104]. Petitioner did not file a reply, E.D. Tenn. L.R. 7.1, 7.2, and, on December 21, 2016, this Court entered a Memorandum Opinion and Judgment Order granting the request for collateral relief [Docs. 105, 106]. Specifically, the Court reduced Petitioner's sentence to 120 months' incarceration and three years' supervised release [Id.] Before the Court are pro se motions to alter its prior ruling pursuant to Federal Rule of Civil Procedure 59(e) [Doc. 107], and for “production [of] records” [Doc. 108].

         I. FACTUAL BACKGROUND

         In 1995, a jury convicted Petitioner of two counts of possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g) [Doc. 51]. Based on three sets of Tennessee convictions-a 1980 conviction for attempted third-degree burglary [Presentence Investigation Report (PSR) ¶ 23], a set of 1983 convictions for armed robbery and manslaughter [Id. ¶ 35], and a 1984 conviction for second-degree murder [Id. ¶ 26], the United States Probation Office deemed Petitioner to be an armed career criminal subject to the ACCA's enhanced fifteen-year mandatory minimum sentence [Id. ¶ 34]. As a result, the PSR assigned Petitioner an advisory Guideline range of 262 to 327 months' imprisonment, with a statutory minimum sentence of 180 months [Id. ¶¶ 44, 45]. This Court sentenced Petitioner to the top of his Guideline range on November 11, 1995 [Doc. 51]. Petitioner appealed, but the Sixth Circuit affirmed his conviction and sentence. See generally United States v. McBee, No. 95-6658, 1997 WL 10950 (6th Cir. 1997).

         Over the next eight years, Petitioner filed two pro se § 2255 motions [Docs. 65, 93, 94]; this Court denied the first as untimely [Docs. 79, 80] and the second for want of Sixth Circuit authorization [Docs. 95, 96]. On June 26, 2015, the Supreme Court released the Johnson decision. Petitioner filed another successive petition for collateral relief less than one year later [Doc. 92]. This Court transferred Petitioner's filing to the Sixth Circuit in accordance with 28 U.S.C. §§ 1631 and 2255(h)(2) [Docs. 95, 96]. The Sixth Circuit authorized this Court to consider the successive collateral challenge on September 22, 2016 [Doc. 98]. This Court denied the successive collateral attack in a Memorandum Opinion and Judgment Order on December 21, 2016 [Docs. 105, 106].

         II. RESOLUTION OF ORIGINAL PETITION

         Petitioner's most recent collateral challenge contained a single ground for relief: correction of sentence in light of the Johnson decision because Petitioner's prior attempted burglary conviction no longer qualified as a violent felony and, as a result, he could no longer be classified as an armed career criminal subject to the ACCA's fifteen-year mandatory minimum.[2]

         The Court agreed and explained as follows:

One of the three sets of convictions upon which this Court relied when it deemed Petitioner to be an armed career criminal was a 1980 conviction for attempted third-degree burglary . . . . The offense does not qualify as a violent felony under the ACCA's use-of-force clause because it does not have as an element the use, attempted use, or threatened use of violent force against another, see Untied States v. Barnett, 540 F.App'x 532, 536-37 (6th Cir. 2013) (citing Descamps and explaining a statute only meets the first subcategory of violent felony under the ACCA where violations categorically require the use or attempted use of violent physical force), and does not fall within one of the provision's enumerated categories of violent felony, see e.g., United States v. Bureau, 52 F.3d 584, 590-93 (6th Cir. 1995) (noting that burglary qualifies under the enumerated-offense clause, but attempted burglary could only qualify under the “otherwise” residual clause). The Johnson decision thus dictates that the conviction can no longer be used to designate Petitioner an armed career criminal under § 924(e).

[Doc. 105 p. 5]. The Court went on to conclude that, absent ACCA enhancement, Petitioner's 327 month term of imprisonment and five years' supervised release exceeded his maximum authorized sentence under § 922(g)(1) by 207 months' incarceration and two years' supervised release [Id. at 5]. In light of the foregoing, the Court found correction of sentence, not a resentencing hearing, to be the most appropriate form of relief and entered a Memorandum Opinion and Judgment Order correcting the sentence to 120 months' incarceration and three years' supervised release [Id. at 6].[3]

         III. STANDARD OF REVIEW

         A motion to alter or amend judgment under Rule 59(e) may be granted for a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. GenCorp, Inc. v. American Intern. Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). It is improper to use the motion “to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (citation omitted). The Court's discretion to grant relief must be used sparingly, as revising a final judgment is an extraordinary remedy. Ira Green, Inc. v. Military Sales & Service Co., 775 F.3d 12, 18 (1st Cir. 2014).

         IV. REQUEST FOR RECONSIDERATION

         In his pro se motion to alter or amend, Petitioner asks that the Court reconsider the duration of his corrected sentence in light of a number of factors that Petitioner argues FDSET should have raised in a reply to the United States response, but did not [Doc. 107]. He cites the following considerations as justification for a shorter term of incarceration: the significant amount of time that Petitioner has already spent incarcerated on separate state convictions; the development of several health-related conditions which have ...


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