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Koffman v. United States

United States District Court, M.D. Tennessee, Nashville Division

August 14, 2019

LARRY PAUL KOFFMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         Before the court is Larry Paul Koffman's Motion to Vacate, Set Aside, or Correct Sentence in Accordance with 28 U.S.C. § 2255 (Doc. No. 1), seeking to vacate the sentence entered upon his 2005 criminal conviction in United States v. Koffman, No. 3:03-cr-00171 (M.D. Tenn. Feb. 23, 2005) (Judgment, Doc. No. 99) (Wiseman, S.J., retired).[1] Koffman argues that he is entitled to resentencing under Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the so-called residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. For the reasons set forth below, Koffman's motion will be denied.

         I. PROCEDURAL BACKGROUND

         On September 10, 2003, Koffman was indicted on two charges of armed bank robbery, in violation of 18 U.S.C. § 2113(d) (Counts 1, 4); two counts of using or carrying a firearm during and in relation to a crime of violence, under 18 U.S.C. § 924(c) (Counts 2, 5); and two counts of being a previously convicted felon in possession of a firearm (Counts 3, 6). (Crim. Doc. No. 10.)

         In November 2004, Koffman pleaded guilty to Counts 4, 5, and 6 of the Indictment, and the government voluntarily dismissed Counts 1, 2, and 3. (Crim Doc. No. 73.) He was sentenced on February 23, 2005 to 57 months on Counts 4 and 6, to run concurrently, and 84 months on Count 5, to run consecutively. (Crim. Doc. No. 79.) His subsequent appeal was dismissed on the grounds that he had knowingly and voluntarily waived his right to appeal. United States v. Koffman, No. 05-5570 (6th Cir. Sept. 21, 2005). (Crim. Doc. No. 88.)

         His § 2255 motion was filed, through counsel, on June 22, 2016. (Doc. No. 1.) The government responded (Doc. No. 5), and the movant, through counsel, filed a Reply (Doc. No. 7). Because Judge Wiseman had retired, the motion was assigned to Judge William J. Haynes, Jr. Following the retirement of Judge Haynes, the case was reassigned to the undersigned.

         II. LEGAL STANDARD

         The movant brings this action under 28 U.S.C. § 2255. Section 2255 provides a statutory mechanism for challenging the imposition of a federal sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). In order to obtain relief under § 2255, a petitioner “‘must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). A motion under § 2255 is ordinarily subject to a one-year statute of limitations, running from the date the underlying conviction became final. 28 U.S.C. § 2255.

         III. ANALYSIS

         Koffman argues, based on Johnson, that he is entitled to resentencing because: (1) his offense level was increased under U.S.S.G. § 2K2.1(a)(4)(A) based on a prior conviction that can no longer be considered a “crime of violence” under the definition of that term in the “now unconstitutional residual clause” of U.S.S.G. § 4B1.2(a)(2) (Doc. No. 1, at 2); and (2) he is entitled to resentencing on the § 924(c) offense (Count 5), based on which the court was required to sentence him to a mandatory consecutive sentence of seven years, because the definition of a “crime of violence” in § 924(c)(3)(B) is likewise void for vagueness. The government argues, in response, that armed bank robbery qualifies as a crime of violence regardless of whether the residual clauses in § 4B1.2(a)(2) or § 924(c)(3)(B) are unconstitutional.[2]

         The legal landscape has changed substantially since the filing of Koffman's motion, but he is not entitled to relief.

         A. Count 5 ...


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