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United States v. Fisher

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

June 21, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
RAHAEL FISHER DEFENDANT/MOVANT Criminal Action No. 3:13-CR-000158-GNS-DW

          MEMORANDUM OPINION & ORDER

          Greg N. Stivers, Judge United States.

         This matter is before the Court upon Defendant's Objection to the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (DN 75). For the reasons discussed below, Defendant's objection is OVERRULED, his motion to vacate, set aside, or correct pursuant to 28 U.S.C. § 2255 (DN 58) is DENIED, and he is DENIED a certificate of appealability.

         I. BACKGROUND

         On November 20, 2013, Defendant Rahael Fisher (“Fisher”) was indicted for knowingly possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). (Indictment 1, DN 1). The indictment was based on Fisher's three prior state court convictions in Jefferson Circuit Court for: (1) second-degree burglary and receiving stolen property in case number 11-CR-000997; complicity to trafficking in a controlled substance (Schedule II-cocaine) in case number 11-CR-001104-001; and second-degree burglary in case number 12-CR-001350. (Indictment 1).

         On December 4, 2014, Fisher pleaded guilty pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C) plea agreement. (Plea Agreement 1-2, DN 43; Order, DN 44; J. & Commitment Order 1, DN 52). In the agreement, Fisher and the government concluded that the base offense level would be calculated under Section 2K2.1(a)(2) of the U.S. Sentencing Guidelines Manual (“USSG”). (Plea Agreement 6). Section 2K2.1(a)(2) provided for a base offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (U.S. Sentencing Comm'n 2014). At the time, “crime of violence” was defined in USSG § 4B1.2(a) 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 us of a physical force against the person of another, or
(2) is burglary of a dwelling, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.[1]

         U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm'n 2014). The parties further stipulated that the base offense level of 24 was increased by 4 levels under USSG § 2K2.1(b)(6)(B) for use of the subject firearm and decreased 3 levels under USSG § 3E1.1(a) & (b) for acceptance of responsibility, which resulted in a total offense level of 25. (Plea Agreement 6). From this, the parties agreed that a 96-month sentence was appropriate. (Plea Agreement 6).[2] The Court concurred and, on March 30, 2015, it accepted the plea agreement and sentenced Fisher to 96 months imprisonment. (J. & Commitment Order 1-3).

         As part of the plea agreement, Fisher waived his right to appeal or collaterally attack his conviction and sentence, except for claims of ineffective assistance of counsel or prosecutorial misconduct. (Plea Agreement 7). Specifically, paragraph 12 of the agreement provides:

Defendant is aware of his right to appeal his conviction and that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Unless based on claims of ineffective assistance of counsel or prosecutorial misconduct, the Defendant knowingly and voluntarily waives the right (a) to directly appeal his conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. § 3742, and (b) to contest or collaterally attack his conviction and the resulting sentence under 28 U.S.C. § 2255 or otherwise.

(Plea Agreement 7).

         Nevertheless, more than a year after sentencing, on June 2, 2016, Fisher filed his current motion to vacate, set aside, or correct on grounds other than ineffective assistance of counsel or prosecutorial misconduct. (See Mot. Vacate, Set Aside, or Correct 3, DN 58). In his motion, Fisher claims that he was denied due process due to the miscalculation of his sentence. He explains that USSG § 2K2.1(a)(4), which was used to calculate base offense level, incorporates the definition of “crime of violence” found in USSG § 4B1.2(a), which in turn contains a residual clause identical to the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) the Supreme Court held void for vagueness in Johnson v. United States, 135 S.Ct. 2551 (2015), held void for vagueness. Fisher also claims that his sentence is constitutionally infirm under Mathis v. United States, 136 S.Ct. 2243 (2016).

         The Magistrate Judge thoroughly addressed Fisher's claims in the Report and Recommendation. The Magistrate concluded that Fisher's Johnson claim was not barred by paragraph 12 of the plea agreement, but ultimately decided that it fails on the merits because Fisher's sentence was calculated under the enumerated offense of “burglary of a dwelling” then found in USSG § 4B1.2(a), rather than the residual clause. On the other hand, the Magistrate did conclude that Fisher knowingly and voluntarily waived his ...


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