Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Augustin v. United States

United States District Court, E.D. Tennessee, Chattanooga

January 14, 2020

ABRAHAM A. AUGUSTIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Magistrate Judge Susan K. Lee

          MEMORANDUM AND ORDER

          TRAVIS R. McDONOUGH, UNITED STATES DISTRICT JUDGE

         Before 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 GRANTED.

         I. BACKGROUND

         On 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).

         On 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).

         On 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).[1] (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).

         II. STANDARD OF REVIEW

         To 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).

         III. ANALYSIS

         Petitioner 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.)

         Section 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 “discharged.”[2] Id.

         For the 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.