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Dean v. United States

United States District Court, W.D. Kentucky, Louisville

April 25, 2017

GLENN R. DEAN MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT Civil Action No. 3:16-CV-00403-CRS

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE.

         I. Introduction

         Glenn 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 reply.[1]

         The 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.

         For the 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.

         II. Magistrate Judge's Findings of Fact

         On 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.

         On the 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.

         On 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.

         Dean 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 certiorari.

         The 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).

         III. Magistrate Judge's Conclusions of Law and Recommendation

         A 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 felony is

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 ...

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