United States District Court, W.D. Kentucky, Louisville
GLENN R. DEAN MOVANT
UNITED STATES OF AMERICA RESPONDENT Civil Action No. 3:16-CV-00403-CRS
CHARLES R. SIMPSON III, SENIOR JUDGE.
R. Dean filed a motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence, ECF No. 66. He submitted
a memorandum of law in support of this motion, ECF No. 70.
Dean challenges his conviction in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). Mot. Vacate 4, ECF
No. 66. The United States responded, ECF No. 73. Dean did not
magistrate judge made findings of fact, conclusions of law,
and a recommendation. R. & R., ECF No. 74. Dean makes two
objections to the magistrate judge's analysis: (1) he
objects to the magistrate judge's finding of fact that he
did not file a petition for writ of certiorari; and (2) he
objects to the magistrate judge's conclusion of law that
his predicate state convictions did not fall within the
residual clause held to be unconstitutionally vague in
Johnson. Obj.2, 6, ECF No. 76.
reasons below, the Court will sustain in part and overrule in
part Dean's objections to the magistrate judge's
findings of fact, conclusions of law, and recommendation. The
Court will deny Dean's motion to vacate. The Court will
deny Dean a certificate of appealability.
Magistrate Judge's Findings of Fact
August 19, 2008, Dean entered into a plea agreement on Count
1 of an indictment that charged him with being a convicted
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). R. & R. 1, ECF No. 74.
The indictment listed two prior felony convictions: (1) seven
counts of first degree robbery in 1998, and (2) first degree
trafficking in a controlled substance in 2005. Id.
In the plea agreement, Dean acknowledged that "if the
Court determine[d] at sentencing that [he was] subject to the
provisions of the Armed Career Criminal Act [(ACCA)], 18
U.S.C. §924(e) ... and [the U.S. Sentencing Guidelines
("the Guidelines")] § 4B1.4" then he
faced a mandatory minimum term of imprisonment of 15 years
and a potential maximum term of life imprisonment.
Id. at 1-2. Conversely, he acknowledged that if the
Court determined that he was not subject to the provisions of
the ACCA, then he would face a term of imprisonment of up to
10 years. Id. at 2. The parties to the plea
agreement also concluded that Dean's applicable offense
level would be determined pursuant to a presentence report
and that Dean's criminal history would be determined upon
completion of the presentence investigation. Id.
Additionally, Dean acknowledged that the Court would
independently calculate the Guidelines and determine his
criminal history. Id.
same day, during the change of plea hearing, the Court once
again advised Dean of these minimum and maximum terms of
imprisonment and reiterated that they depended on whether the
ACCA applied. Id. Because there was a dispute about
whether Dean's prior first degree robbery conviction
constituted two separate offenses for the purposes of the
ACCA, Dean and the government disagreed as to whether the
ACCA applied. Id. The Court entered Dean's
guilty plea. Id. at 3.
November 12, 2008, the Court conducted Dean's sentencing
hearing, at which the parties set forth their arguments as to
whether Dean's prior robbery conviction constituted two
separate offenses. Id. Dean's attorney did not
dispute that the circumstances underlying the robbery
conviction constituted two separate, distinct episodes, but
she argued that Dean did not have the requisite intent to
commit the second offense. Id. The Court disagreed
with Dean's argument and found that he had the requisite
intent to commit the second robbery offense. Id.
Moreover, the Court found that there were two separate
robbery offenses. Id. Thus, the Court held that Dean
qualified for the sentencing enhancement under the ACCA
because the two robbery offenses and the drug trafficking
offense constituted three predicate offenses. Id. at
3-4. The Court sentenced Dean to imprisonment for 180 months
and ordered that that sentence would run concurrently with an
existing Jefferson County, Kentucky Circuit Court sentence
for which Dean was serving. Id. at 4.
objects to only one of the magistrate judge's findings of
fact. Obj. 2, ECF No. 76. The Court shall make a de novo
determination of the proposed findings to which Dean
objected. See 28 U.S.C. § 636(b)(1)(B)-(C);
Fed. R. Crim. P. 59(b)(3). According to the magistrate judge,
Dean appealed to the Sixth Circuit but did not file a
petition for a writ of certiorari to the Supreme Court of the
United States. R. & R. 4, ECF No. 74. But according to a
letter from the Supreme Court of the United States to the
Sixth Circuit Court of Appeals, Dean filed a petition for a
writ of certiorari on November 22, 2010. 11/30/2010 Letter,
ECF No. 62. The petition was denied on January 10, 2011.
1/10/2011 Letter, ECF No. 63. Therefore, the Court will
sustain Dean's objection to the magistrate judge's
factual finding that he did not file a petition for a writ of
Court construes Dean's other objection as an objection to
the magistrate judge's conclusions of law. The Court
accepts and adopts the magistrate judge's remaining
factual findings to which Dean did not object. See
28 U.S.C. § 636(b)(1)(B).
Magistrate Judge's Conclusions of Law and
person's sentence will be enhanced to a minimum of 15
years imprisonment under the ACCA if the person "has
three previous convictions ... for a violent felony or a
serious drug offense, or both, committed on occasions
different from one another." 18 U.S.C. § 924(e)(1).
A serious drug offense is one under either federal or state
law for which there is a maximum term of imprisonment of at
least 10 years. Id. § 924(e)(2)(A). A violent
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