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Daniels v. United States

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

September 3, 2019

MICHAEL WAYNE DANIELS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGED

         Before the court is Michael Wayne Daniels' Motion to Vacate, Set Aside, or Correct Sentence in Accordance with 28 U.S.C. § 2255. (Doc. No. 1.) Daniels seeks to vacate and reduce the sentence imposed for his 2006 conviction in United States v. Daniels, No. 3:04-cr-00192 (M.D. Tenn. Jan. 1. 2006) (Judgment, Doc. No. 70), [1] based on Johnson v. United States, 135 S.Ct. 2551 (2015). For the reasons set forth herein, the motion will be granted in part and denied in part.

         I. Procedural Background

         On September 16, 2005, Daniels pleaded guilty to the three charges set forth in the Indictment, including (1) interference with commerce by robbery, in violation of 18 U.S.C. §§ 1951 (“Hobbs Act robbery”) and 2; (2) using a firearm during and in relation to a crime of violence (specifically, the Hobbs Act robbery), in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. At the same time, he pleaded guilty to the charge contained in a felony Information in a separate case, No. 3:05-cr-00219, robbery of a United States Post Office, in violation of 18 U.S.C. § 2114. (Crim. Doc. No. 69.) At the time he committed the crimes to which he pleaded guilty, he was on parole from a life sentence being served in the Tennessee Department of Correction and had prior felony convictions in the Criminal Court for Davidson County, Tennessee. Pursuant to the written Plea Agreement, Daniels acknowledged that, based on these prior convictions, he qualified as a Career Offender under §§ 4B1.1 and 4B1.2 of the United States Sentencing Guidelines (“USSG”) and as an Armed Career Criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2). He agreed that, based on a total adjusted Offense Level of 34 and Criminal History Category of VI, the applicable guideline range was 262 to 327 months of imprisonment. (Crim. Doc. No. 69-1, Plea Agreement ¶ 11.c.) Under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the parties agreed to a sentence of 300 months. (Id. ¶ 12.)

         The predicate felonies that resulted in the movant's qualifying as a Career Offender under the Sentencing Guidelines and an Armed Career Criminal under the ACCA were identified in the Plea Agreement as including a conviction for armed robbery, a conviction on two counts of simple robbery, and a conviction for third-degree burglary, all in the Criminal Court for Davidson County, Tennessee. (Id. ¶¶ 11.a.1.) He specifically acknowledged that he faced a maximum sentence of 20 years on Count One (Hobbs Act robbery), a mandatory minimum consecutive sentence of five years on Count Two, a mandatory minimum sentence of fifteen years on Count Three, and a maximum sentence of twenty-five years on the felony Information. (Id. ¶ 4.)

         Following the court's acceptance of his plea, Daniels was sentenced on December 5, 2005 to 240 months on Count One and 180 months on Count Three, to be served concurrently; 60 months on Count Two, to be served consecutively to Count One; 120 months on the Information, also to be served concurrently with the sentence on Counts One and Three of the Indictment; and five years of supervised release. (Crim. Doc. No. 68.) Judgment was entered on January 4, 2006. (Crim. Doc. No. 70.) Daniels did not appeal his conviction or sentence.

         He filed his § 2255 motion to vacate on June 27, 2016, arguing that: (1) his conviction on Count Two, for carrying a weapon in connection with a crime of violence, is invalid, because Hobbs Act robbery could only qualify as a crime of violence under the “residual clause” of § 924(c), which is unconstitutional in light of Johnson; (2) his career-offender status for purposes of his sentence on Count One is invalid, both because Hobbs Act robbery does not qualify as a crime of violence and because the residual clause of USSG § 4B1.2 is likewise void for vagueness under Johnson; and (3) his fifteen-year sentence on Count Three is no longer valid in light of Johnson, because the conviction for third-degree burglary does not qualify as a crime of violence. (Doc. No. 1.) The government filed a Response in opposition to the motion. (Doc. No. 5.) Daniels requested that his motion be held in abeyance pending resolution of cases then pending before the Sixth Circuit or the Supreme Court.

         Following review of the parties' initial submissions, the court concluded that, in light of Cradler v. United States, 891 F.3d 659 (6th Cir. 2018), it had become “clear that Daniels' 1985 conviction for third-degree burglary no longer qualifies as a crime of violence for purposes of sentencing under the [ACCA]” and, consequently, that resolution of the issue of whether the two counts of Tennessee simple robbery for which Daniels was convicted in a single case in 1983 qualify as two felonies “committed on occasions different from one another, ” 18 U.S.C. § 924(e)(1), was “now potentially dispositive of the question of whether Daniels is entitled to resentencing on the felon-in possession conviction” in No. 3:04-cr-00192. (Order, Doc. No. 9, at 1-2.) Because there were no Shepard-approved documents in the record establishing that the two simple robbery convictions qualified as two separate felonies for ACCA purposes, the court ordered the government to file a supplemental brief and whatever Shepard documents were available to it, addressing the question of whether the simple robbery convictions could be counted as two prior violent felonies for ACCA purposes. The court also authorized the movant to file a supplemental reply. (Id. at 2.)

         The supplemental briefing has now been concluded. The government has filed the Shepard-approved documents it has been able to locate (Doc. No. 14-1) but concedes that it “does not possess any Shepard-approved documents definitively showing that Daniels' robbery convictions occurred on two separate dates in 1978.” (Doc. No. 16, at 2.) It argues that Daniels is nonetheless not entitled to relief on his ACCA claim, because (1) Daniels' post-conviction arguments were waived by the terms of his Plea Agreement; and (2) under the concurrent sentence doctrine, modification of the ACCA sentence will not affect Daniels' overall sentence. (Id. at 2-3.) The movant has responded that he has established entitlement to relief under Johnson and that the court should exercise its discretion not to apply the concurrent sentence doctrine. (Doc. No. 21.)

         II. Legal Framework A. 28 U.S.C. § 2255

         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.

         B. The ACCA and Johnson

         18 U.S.C. § 922(g)(1) makes it unlawful for a previously convicted felon to possess any firearm or ammunition that has been transported in interstate commerce. Ordinarily, a felon-in-possession conviction carries a ten-year maximum sentence. 18 U.S.C. § 924(a)(2). However, the ACCA, 18 U.S.C. § 924(e), mandates a minimum sentence of fifteen years for any person convicted under § 922(g)(1) who has “three previous convictions . . . for a violent felony or a serious drug offense.”

         Section 924(e)(2)(B) defines “violent felony” to mean:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the ...

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