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United States v. Gray

United States District Court, W.D. Arkansas, Fayetteville Division

July 12, 2018

UNITED STATES of AMERICA PLAINTIFF/RESPONDENT
v.
NICHOLAS GRAY DEFENDANT/PETITIONER

          MAGISTRATE JUDGE REPORT AND RECOMMENDATION

          HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

         Before the court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section 2255 (Doc. 45) filed June 11, 2018. The United States of America filed a Response (Doc. 48) on July 10, 2018 and the matter is ready for Report and Recommendation.

         I. Background

         On September 9, 2010, a criminal complaint was filed against Nicholas Gray (“Gray”) alleging two counts of distributing cocaine base. (Doc.1). Thereafter, Gray was named in a two-count Indictment filed in the Western District of Arkansas, Fayetteville Division, on September 15, 2010. (Doc.2). Counts One and Two charged Gray with distributing crack cocaine.

         On December 7, 2010, Gray appeared with his attorney before the Honorable Jimm Larry Hendren for a change of plea hearing. (Doc. 18). The Court was presented with a written plea agreement whereby Gray to enter a plea of guilty to Count One of the Indictment. (Doc. 19).

         Gray's Presentence Investigation Report (“PSR”) was issued on March 11, 2011. (Doc. 23). The PSR recommended a base offense level of 36 on finding Gray to be accountable for 18.2 grams of cocaine base. (PSR, ¶ 27). After receiving a 3-point reduction for acceptance of 1 responsibility, Gray's final offense level was 21. (PSR, ¶¶ 33 - 35). However, Gray was found to be a career offender for having prior Arkansas residential burglary and accomplice to manslaughter convictions, which resulted in an adjusted offense level of 32. (PSR, ¶ 36). With the 3-point adjustment for acceptance of responsibility, Gray's new total offense level was set at 29. (PSR, ¶¶ 37 - 39). Gray's statutory range called for a maximum term of imprisonment of 20 years. (PSR, ¶ 72). His advisory guidelines range was 151 to 188 months. (PSR, ¶ 73).

         Gray's sentencing hearing was held on March 11, 2011, whereat, the Court granted the United States' 5K1.1 motion and sentenced him to 140 months imprisonment, 3 years supervised release, a $12, 500 fine, and a $100 special assessment. (Docs. 25 and 26).

         On September 22, 2015, Gray, through counsel Bruce Eddy, filed an Unopposed Motion to Reduce Sentence Pursuant to Amendment 788 and 18 U.S.C. § 3582(c)(2). (Doc. 28). The Court denied Gray's motion based in part on him being found to be a career offender. (Docs. 30 and 31).

         On June 16, 2016, Gray, through counsel Bruce Eddy, filed a Motion For Relief Under 28 U.S.C. § 2255 based on the application of Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. 37). The Court, thereafter, stayed the motion pending the Supreme Court's ruling in Beckles v. United States. (Doc. 40). After the Beckles decision, Gray filed a Notice of Dismissal of the § 2255 Motion on April 26, 2017. (Doc. 41). A clerk's order was entered the next day dismissing the motion. (Doc. 42).

         On June 11, 2018, Gray filed the instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody requesting relief based on the recent Supreme Court decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

         II. Discussion

         A. Sessions v. Dimaya

         The Petitioner contends that he was improperly classified as a career offender because his convictions for burglary and manslaughter should not have been considered violent offenses pursuant to Sessions v. Dimaya. (Doc. 45, p. 4)

         On June 26, 2015, the Supreme Court held in Johnson that the “residual” clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Johnson, 135 S.Ct. at 2563. The Act defined “violent felony” as “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 person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B) (emphasis added). The emphasized text is referred to as the residual clause and it is this clause that ...


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