United States District Court, E.D. Tennessee, Greeneville
JORDAN UNITED STATES DISTRICT JUDGE
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]. 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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
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.
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”
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
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].
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
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
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].
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].
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].