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Morgan v. United States

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

July 22, 2019

LARRY SHANE MORGAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEON JORDAN UNITED STATES DISTRICT JUDGE

         Petitioner Larry Shane Morgan's counseled motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is before the Court for resolution [Doc. 1].[1] Petitioner bases his request for 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”) was unconstitutionally vague [Id.]. The United States responded in opposition [Doc. 3]. Petitioner did not reply and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. Because the record in this case establishes conclusively that Petitioner is not entitled to relief under § 2255, no evidentiary hearing is necessary. See Rule 8(a), Rules Governing § 2255 Cases. For the following reasons, Petitioner's § 2255 motion [Doc. 1] will be DENIED and DISMISSED WITH PREJUDICE.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         Petitioner was charged in a superseding indictment with aiding and abetting a Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1); aiding and abetting the use, carrying, brandishing or discharge of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); armed bank robbery, a violation of 18 U.S.C. § 2113(a) and (d) (Count 3); using, carrying, brandishing or discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(c)(1)(C)(i) (Count 4); and being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) (Counts 5-6) [Doc. 27 (sealed), No. 2:12-CR-17].

         The facts surrounding the offenses are taken from the Sixth Circuit's opinion on direct review of Petitioner's convictions [Doc. 285, United States v. Morgan, Nos. 13-6232/2233 (6th Cir. Feb. 11, 2015 (Order), No. 2:12-CR-67]. The charges in Counts 1 and 2 (Hobbs Act robbery and aiding and abetting the use or carrying of a firearm during and in relation to a crime of violence) stemmed from a robbery of a convenience store by a man and woman armed with firearms and wearing disguises. The man ordered the store clerk to get down on the floor and then fired a gunshot in the direction of the store clerk. The man placed the money from the cash register in a mesh bank, and, despite the store clerk's compliance with the man's orders, he hit the clerk on the head with the firearm.

         The offenses of bank robbery and using or carrying a firearm during and in relation to a crime of violence, as charged in Counts 3 and 4, had their genesis in a bank robbery that was committed less than one week later. The perpetrator of the bank robbery was a lone man and he too was disguised. The man fired a shot in the direction of the tellers, told them to get down on the floor, and ordered them to place the money in a mesh bag. When Petitioner was apprehended, he was carrying some of the bank's “bait” money.[2]

         During a three-day trial in mid-October, 2012, Petitioner's co-defendant identified Petitioner as the man who participated in the criminal episodes, and the jury then convicted Petitioner of the charged offenses [Docs. 186 (Criminal Minutes); 188 (Redacted Verdict); and 266 (Trial Tr.), No. 2:12-CR-67]. A Presentence Investigation Report (“PSR”) was ordered to assist the Court with sentencing.

         In the PSR, the probation officer found, for the Hobbs Act robbery in Count 1, a base offense level of 20, pursuant to U.S.S.G. § 2B3.1 [PSR ¶ 21]. The base level offense was increased by four points-two points, under U.S.S.G. § 2B3.1(b)(3)(A), for bodily injury of the victim who was hit in the head, and two points, pursuant to U.S.S.G. § 3B1.1(c), for Petitioner's organizer or leadership role in the offense [PSR ¶¶ 22, 24]-resulting in an adjusted offense level of 24 [PSR ¶ 26].

         The base level offense for the armed bank robbery in Count 3 also was 20, pursuant to U.S.S.G. § 2B3.1(4)(6)(A). Adding two points under U.S.S.G. § 3B3.1(b)(1) for the taking of a financial institution's property and one point for a loss of more than $10, 000 but less than $50, 000 under U.S.S.G. § 2B3.1(b)(7)(B) yielded an adjustment offense level of 23. The probation officer used the greater of the above two adjusted offense levels, i.e., 24, calculated the multiple count adjustment at 3 units, and with that three-level increase, determined that the combined adjusted offense level on both counts was 27, which was also the total offense level.

         Counts 5 and 6 (felon in possession of ammunition) were grouped for guideline calculation purposes. The base level offense for that crime was 20, pursuant to § 2K2.1(a)(4)(A). No. adjustments were applied, so the adjusted offense level remained 20.

         Minimum statutory sentences were tied to the convictions in Counts 2 and 4 (the § 923(c)(3) offenses), meaning that the guideline sentences for those offenses would be the minimum statutory terms of imprisonment (5 years for Count 2 and 25 years for Count 4) [PSR ¶¶ 41-44]. Petitioner's criminal history category was III, which along with his total offense level of 27, resulted in a guideline imprisonment range of 87 to 108 months [PSR ¶¶ 57, 7].

         After resolving Petitioner's objections to the PSR, the Court sentenced Petitioner to a total 447 month's imprisonment, consisting of 87 months for Counts One, Three, Five, and Six; a consecutive 60 months on Count Two; and a consecutive 300 months on Count Four, to be followed by five years on supervised release [Docs. 243 (notice of objections), 255 (order on objections), 258 (criminal minutes) and 259 (judgment), No. 2:12-CR-67]. Judgment entered on August 30, 2013 [Doc. 259 (judgment), No. 2:12-CR-67].

         On direct appeal, Petitioner's convictions and sentences were affirmed [Doc. 285, United States v. Morgan, Nos. 13-6232/2233 (6th Cir. Feb. 11, 2015 (Order), No. 2:12-CR-67]. Thereafter, Petitioner, through counsel, filed this motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 [Doc. 1].

         II. ...


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