United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
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). 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.
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.)
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.)
§ 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.
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
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.
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
legal landscape has changed substantially since the filing of
Koffman's motion, but he is not entitled to relief.
Count 5 ...