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Buford v. United States

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

April 10, 2017

GEORGE W. BUFORD, Petitioner,



         Before the Court is Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 160, 161, 166, 168, 176].[1] He bases his request for collateral relief on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court 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 opposition on August 1, 2016 [Doc. 169]; Petitioner replied in turn on August 29, 2016 [Doc. 174]. Also before the Court are Petitioner's pro se motions for a writ “ad prosequendum” [Doc. 167], to correct the Presentence Investigation Report (PSR) [Docs. 172, 173], and for a status update [Doc. 177]. For the reasons below, Petitioner's motions to correct the PSR [Docs. 172, 173] will be DENIED and his supplemented § 2255 motion [Docs. 160, 161, 166, 168, 176] will be DENIED and DISMISSED WITH PREJUDICE. Petitioner's requests for a writ “ad prosequendum” and status update [Docs. 167, 177] will be DENIED as moot.

         I. BACKGROUND

         In 1998, Petitioner robbed six convenience stores and fast food restaurants in Knoxville, Tennessee. United States v. Buford, 106 F. App'x 400, 401 (6th Cir. 2004). In 2002, a jury convicted Petitioner of six counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, four counts of using and carrying a firearm in relation to those robberies, in violation of 18 U.S.C. § 924(c), and one count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g). Id.

         Although the indictment and superseding indictment charged Petitioner with possessing a firearm as a felon, in violation of both 18 U.S.C. §§ 922(g) and § 924(e), he was never classified as an armed career criminal under § 924(e) or sentenced accordingly [PSR ¶ 119 (describing the maximum term of imprisonment for that count as ten years' imprisonment, rather than the fifteen-year mandatory minimum that would have applied had Petitioner been an armed career criminal)]. Instead, when calculating the applicable Guidelines range, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines [Id. ¶ 82] based on prior convictions for kidnapping and aggravated sexual battery [Id. ¶ 88] and aggravated assault [Id. ¶ 89]. The corresponding Guideline range was 210 to 262 months' imprisonment, to be followed by the statutorily mandated consecutive terms for each § 924(c) conviction-84 months for the first offense and 300 months for each subsequent offense [Id. ¶¶ 119, 120]. Consistent with the foregoing, this Court sentenced Petitioner to an aggregate term of 1, 194 months' imprisonment-concurrent 210-month terms for the robberies and a concurrent 120-month term for the § 922(g) offense, followed by the statutorily-mandated consecutive minimum terms for his four § 924(c) offenses. Buford, 106 F. App'x at 401. Petitioner appealed, and the Court of Appeals for the Sixth Circuit affirmed his conviction and sentence in 2004. Id.

         Petitioner filed an initial motion to vacate, set aside, or correct his sentence in 2005 [Doc. 89]. This Court denied that petition in a Memorandum Opinion and Judgment Order entered on November 21, 2006 [Docs. 94, 95]. Beginning in April of 2007, Petitioner started filing a series of pro se collateral challenges, each of which this Court transferred to the Sixth Circuit as an unauthorized successive § 2255 motion and all of which the Sixth Circuit denied [Docs. 98, 105, 107, 117, 120, 123, 132, 133, 136, 146, 150, 156]. Petitioner also unsuccessfully sought relief under 18 U.S.C. § 2241. Buford v. Warden, Lewisburg USP, 588 F. App'x 89 (3rd Cir. 2014).

         On June 20, 2016, Petitioner submitted the instant motion seeking collateral relief from his career offender designation and § 924(c) convictions based on the Johnson decision [Doc. 160]. Appointed counsel filed a supplement in support of Petitioner's career offender challenge [Doc. 161]. The Sixth Circuit granted leave to consider the successive filing on July 1, 2016 [Doc. 164].


         In addition to the petition, this Court is in possession of Petitioner's motion and amended motion to “correct” the information contained in his PSR [Docs. 172, 173]. In those motions, Petitioner claims he is actually innocent of the sexual battery offense listed in his PSR and argues the Court erred when it relied on that offense for career offender enhancement.

         “[D]istrict court[s] [are] allowed to accept as true all factual allegations in a [PSR] to which the defendant does not object.” United States v. Bondurant, 146 F. App'x 762, 763 (6th Cir. 2005). The proper time for making such an objection is at the original sentencing hearing, and failure to make the objection at that time waives future objections. United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001). Because Petitioner did not object to this Court's inclusion of the kidnapping and sexual battery offense in his PSR at the original sentencing hearing, he cannot do so now.


         A. Standard of Review

         To obtain relief under 28 U.S.C. § 2255, Petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         B. ...

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