United States District Court, E.D. Tennessee, Knoxville
JACKIE W. MCBEE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
Jordan, United States District Judge
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.]. 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].
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).
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].
RESOLUTION OF ORIGINAL PETITION
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.
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
STANDARD OF REVIEW
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.
REQUEST FOR RECONSIDERATION
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 ...