Fleming v. United States

• Decision Date: 28 June 2016
• Docket Number: Case No. 08-cr-20275,Case No. 16-cv-10085
• Citation: 192 F.Supp.3d 841
• Parties: Anthony LaJuan FLEMING, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

192 F.Supp.3d 841

Anthony LaJuan FLEMING, Petitioner,

v.UNITED STATES of America, Respondent.

Case No. 16-cv-10085

Case No. 08-cr-20275

United States District Court, E.D. Michigan, Southern Division.

Signed June 28, 2016

Joan Morgan, Federal Defender Office, Flint, MI, for Petitioner.

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO VACATE SENTENCE [36]

HON. GERSHWIN A. DRAIN, United States District Court Judge

I. INTRODUCTION

On June 9, 2008, Anthony Fleming ("Fleming" or "Petitioner") was indicted on two counts of distributing cocaine base, 21 U.S.C. § 841. Dkt. No. 3. The Court appointed counsel for Fleming on June 10, 2008. Dkt. No. 11. On August 15, 2008, Fleming entered a guilty plea as to Count Two, which charged him with distribution of 50 of more grams of cocaine base. Dkt. No. 19. Fleming is presently serving a sentence of 290 months as a result of the guilty plea.

Presently before the Court is Petitioner's Motion to Vacate Sentence [36]. For the reasons that follow, the Court GRANTS Petitioner's motion.

II. FACTUAL BACKGROUND

On October 11, 2007, Fleming sold 22.3 grams of cocaine base to a controlled source. Dkt. No. 19. Later that month, on October 19, 2007, a Michigan State Police Confidential Informant contacted Fleming and arranged the controlled purchase of a quantity of cocaine base, commonly known as "crack" cocaine. Id. Later that day, the confidential source, while under surveillance, met with Fleming at the City Center Plaza in Flint, Michigan, and purchased 103 grams of cocaine base directly from Fleming. Id.

Fleming was indicted on two counts of distributing cocaine base in June 2008. Dkt. No. 3. On August 15, 2008, Fleming pleaded guilty to Count Two—distribution of 50 or more grams of cocaine base—and the Government agreed to dismiss Count One. Dkt. No. 19. Fleming's counsel objected to whether Fleming's prior conviction for fleeing constituted a crime of violence under the guidelines. See Dkt. No. 25, p. 6, 14 (Pg. ID No. 65, 73). ("Your Honor, the offense itself for lack of a better phrase is one set of guidelines. The Career Enhancements take it to an entirely different realm and we made our positions clear on that."). Fleming was sentenced to 290 months imprisonment on December 5, 2008. Dkt. No. 20, p. 2 (Pg. ID No. 50).

On January 6, 2009, Fleming filed a Notice of Appeal to the Sixth Circuit regarding his Judgement and Sentence. Dkt. No. 21. The Sixth Circuit dismissed the appeal, noting that Fleming waived his appeal because his sentence was within the agreed sentencing range after knowingly and voluntarily entering a guilty plea. Dkt. No. 29.

In December 2012, Fleming filed a Motion for Retroactive Application of Sentencing Guidelines to his crack cocaine offense. Dkt. No. 30, 31. The Court ordered the appointment of a federal defender to determine his eligibility. Dkt. No. 32. The Federal Defender's Office determined that Fleming was not eligible for a sentence modification because the modification to the crack guideline "does not have the effect of lowering the [Fleming's] applicable guideline range." Dkt. No. 34. The Court then denied Fleming's Motion for Reconsideration because reductions were not permitted for defendants who were sentenced prior to the effective date of the Fair Sentencing Act. Dkt. No. 35.

The case is presently before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, arguing based on the recent holding in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) that the sentence imposed was an unconstitutional violation of due process. Dkt. No. 36.

III. LEGAL STANDARD

Title 28 U.S.C. § 2255 permits a prisoner in federal custody to challenge the legality of his or her detention. See Wooten v. Cauley , 677 F.3d 303, 306 (6th Cir.2012). A federal prisoner may do this by filing a motion with the imposing court, seeking to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). To prevail on a § 2255 motion for constitutional error, the petitioner must show that the error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson , 507 U.S. 619, 637–38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ; Humphress v. United States , 398 F.3d 855, 860 (6th Cir.2005). The "substantial and injurious effect" standard is in essence an assessment of the prejudicial impact of the constitutional violation. See McCary v. Lewis , 255 Fed.Appx. 78, 79 (6th Cir.2007) (citing F r y v. Pliler , 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) ).

IV. DISCUSSION

A. The Career Offender Guidelines

The United States Sentencing Guidelines allow a defendant to be adjudged a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4131.1(a). The Guidelines define a "crime of violence" as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2.

Fleming received a career offender enhancement under United States Sentencing Guidelines § 4B1.1 for his previous conviction for fleeing and eluding in the third degree, which the Court determined was a "crime of violence" based on United States v. Martin , 378 F.3d 578 (6th Cir.2004). In Martin , the Sixth Circuit held that fleeing and eluding "otherwise involves conduct that presents a serious potential risk of physical injury to another" under § 4B1.2(a)(2), thus qualifying an offender for a sentence enhancement. Id. at 582.

B. The Johnson Decision

The Supreme Court held in Johnson v. United States that the imposition of an increased sentence under the Armed Career Criminal Act's (ACCA) residual clause violates due process, as guaranteed by the Fifth Amendment of the United States Constitution, because the residual clause is so vague that it "denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S.Ct. at 2557. The Supreme Court further explained that the vagueness doctrine "appl[ies] not only to statutes defining elements of crimes, but also to statutes fixing sentences." Id. In Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016), the Supreme Court clarified that Johnson constituted a new substantive rule, and thus had a retroactive effect in cases on collateral review. See also In re Watkins , 810 F.3d 375, 377 (6th Cir.2015) (determining that Johnson constituted "a new rule of constitutional law, made retroactive to cases on collateral review").

Fleming asks the Court to find that the residual clause of the Sentencing Guidelines to be unconstitutional, as it applies to his case, since the provision of the ACCA struck down in Johnson is identical to the residual clause under which Fleming's sentence was enhanced. See United States v. Ozier , 796 F.3d 597, 604 (6th Cir.2015) ("The residual clause in the Guidelines' ‘crime of violence’ definition at issue herein mirrors the ACCA's residual clause."); 18 U.S.C. § 924(e)(2)(B) ; U.S.S.G. § 4B1.2(a)(2).

Had the residual clause been struck down prior to Fleming's sentencing, Fleming would have lacked one of the requisite two prior felony convictions necessary to be deemed a career offender. Accordingly, his sentence would have had a total offense level of 27, instead of 34, and a criminal history category of V instead of VI. See Dkt. No. 19, p. 12 (Pg. ID No. 45). Based on the sentencing table, Fleming's Guidelines range would have ranged within 120 to 150 months, subject to any applicable mandatory minimum, instead of 262 to 327 months. See id. The district court imposed a sentence in the middle of the Guidelines range: 290 months. Dkt. No. 20, p. 2 (Pg. ID No. 50).

Although the Sixth Circuit recently found that the Sentencing Guidelines' residual clause is constitutionally vague based on Johnson , United States v. Pawlak , 822 F.3d 902 (6th Cir.2016), it has not spoken to whether Johnson 's retroactivity extends in the Sentencing Guidelines context.

C. Collateral Review

In determining whether a new rule applies to cases on collateral review, the Court must apply the framework outlined by the plurality opinion in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Generally, under Teague , "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. at 310, 109 S.Ct. 1060.

Two categories of decisions fall outside of the bar on retroactivity for procedural rules. Welch , 136 S.Ct. at 1264. The first category is composed of substantive rules, which generally apply retroactively. Id. (quoting Schriro v. Summerlin , 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ). The second category includes new "watershed rules of criminal procedure," a limited category of procedural rules that "implicat[e] the fundamental fairness and accuracy of the criminal proceeding." Id. (quoting Saffle v. Parks , 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ). See also O'Dell v. Netherland , 521 U.S. 151, 167, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (citing Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) as an example of a "watershed rule," which was so essential to the fairness of a proceeding that it altered the understanding of bedrock procedural elements).

In contrast, new procedural rules—other than watershed procedural rules—do not apply...