United States District Court, E.D. Tennessee, Chattanooga
ABRAHAM A. AUGUSTIN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Magistrate Judge Susan K. Lee
MEMORANDUM AND ORDER
R. McDONOUGH, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's second motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 (Doc. 245, in No. 1:09-cr-187). The Government has
responded and agrees that Petitioner is eligible for relief.
(See Doc. 5, at 1, in No. 1:19-cv-328.) For the following
reasons, Petitioner's motion will be
October 20, 2010, a federal jury convicted Petitioner of one
count of kidnapping, in violation of 18 U.S.C. § 1201;
one count of using and carrying a firearm in relation to a
crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A); one count of knowingly possessing a firearm as
a convicted felon, in violation of 18 U.S.C. §
922(g)(1); one count of using the mail with intent to commit
murder for hire, in violation of 18 U.S.C. § 1958; and
three counts of attempting to hire a person to kill another
with the intent to prevent his or her testimony at trial, in
violation of 18 U.S.C. § 1512(a)(1)(A). (See
Docs. 89, 113, in No. 1:09-cr-187.) United States District
Judge Curtis L. Collier sentenced Petitioner to a total term
of 500 months' imprisonment. (Doc. 113, at 3, in No.
1:09-cr-187.) This 500-month sentence included a 120-month
sentence on Petitioner's § 924(c) conviction, which
was ordered to be served consecutively to his collective
380-month sentence on the other counts. (Id.)
Petitioner appealed his convictions and his sentence, but the
United States Court of Appeals for the Sixth Circuit
affirmed. See United States v. Dais, 559 Fed.Appx.
438, 450 (6th Cir. 2014).
September 15, 2015, Petitioner filed his first motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, claiming ineffective assistance of
counsel (Doc. 141, in No. 1:09-cr-187). This Court denied
that petition and declined to issue a certificate of
appealability (Doc. 211, in No. 1:09-cr-187), and the Sixth
Circuit subsequently denied his application for a certificate
of appealability (Doc. 227, in No. 1:09-cr-187).
November 13, 2019, the Sixth Circuit granted Petitioner
authorization to file a second § 2255 petition
challenging his § 924(c) conviction in light of the
Supreme Court decision in United States v. Davis,
139 S.Ct. 2319 (2019). (See Doc. 244, at 4, in No.
1:09-cr-187.) Although Petitioner mistakenly purported to
base his second § 2255 petition on the Supreme
Court's decision in Sessions v. Dimaya, 138
S.Ct. 1204 (2018) (see Doc. 245, at 7, in No.
1:09-cr-187), the Government conceded and the Sixth Circuit
agreed that, while Dimaya did not support
Petitioner's claims for relief, Davis did
support his challenge to his § 924(c) conviction (Doc.
244, at 4, in No. 1:09-cr-187).
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, a petitioner must
demonstrate: “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998). If
the court finds that the sentence imposed was not authorized
by law, it must vacate and set aside the judgment and
discharge the prisoner, resentence him, grant him a new
trial, or correct the sentence. 28 U.S.C. § 2255(b).
now argues that his conviction under 18 U.S.C. §
924(c)(1)(A) for using and carrying a firearm in relation to
a crime of violence must be vacated because his kidnapping
conviction no longer qualifies as a “crime of
violence” for the purposes of § 924(c). (Doc. 1,
at 6-7, in No. 1:19-cv-328.)
924(c)(1)(A) imposes mandatory-minimum penalties on any
person who “uses or carries a firearm” during and
in relation to a “crime of violence” or
“drug trafficking crime” or “possesses a
firearm” in furtherance of such a crime. See
18 U.S.C. § 924(c)(1)(A). This is true even if the
underlying crime of violence or drug trafficking crime
already carries “an enhanced punishment if committed by
the use of a deadly or dangerous weapon or device.”
See Id. The statute imposes a mandatory-minimum
sentence of five years' imprisonment for anyone who
violates § 924(c)(1)(A); however, the mandatory minimum
is raised to seven years if the firearm is
“brandished” and ten years if it is
purposes of § 924(c), a “crime of violence”
is a felony offense that either
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or ...