Faircloth v. United States of America

Filing 12

OPINION AND ORDER granting 1 Motion to vacate/set aside/correct sentence (2255) in this civil case; finding deadlines in 11 Order moot. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:06-cr-117-FTM-29MRM), and close the civil file. Signed by Judge John E. Steele on 7/15/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL TERRILL FAIRCLOTH,
Petitioner,
v.

Case No: 2:16-cv-217-FtM-29MRM
Case No. 2:06-CR-117-FTM-29MRM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#61) 1 filed on March 18, 2016.

The government filed an Amended

Response to motion (Cv. Doc. #8) on May 24, 2016.

The Court

appointed

represent

the

Federal

Public

Defender’s

Office

to

petitioner pursuant to Omnibus Order in Re: Amendment 782, United
States Sentencing Guidelines, 6:14-mc-78-ACC (Cv. Doc. #10), and
on July 13, 2016, an Order (Cv. Doc. #11) was issued by Chief Judge
Steven D. Merryday setting a uniform schedule for briefing in the

1The

Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

case.

In light of the following Opinion and Order, the briefing

schedule is deemed moot. 1
On May 2, 2007, pursuant to a Plea Agreement (Cr. Doc. #39),
defendant

entered

a

plea

of

guilty

as

to

Count

One

of

the

Indictment (Cr. Doc. #1) for being a convicted felon in possession
of

ammunition.

The

adjudicated guilty.

plea

was

accepted

(Cr. Doc. #41.)

and

defendant

was

On September 20, 2007, the

government filed a Motion for a Departure Pursuant to 5K1.1 of the
Sentencing Guidelines and 18 U.S.C. § 3553(e) (Cr. Doc. #48)
requesting a four level downward departure from the applicable
offense level.
granted

the

At sentencing on September 24, 2007, the Court

four

levels

and

entered

Judgment

convicting

and

sentencing defendant to 120 months of imprisonment and a 60 month
term of supervised release.

(Cr. Docs. #53, #54.)

Petitioner did

not file a direct appeal or seek collateral relief within a year
of the judgment becoming final, 28 U.S.C. § 2255(f)(1).
On April 18, 2016, in Welch v. United States, 136 S. Ct. 1257
(2016),

the

United

States

Supreme

Court

determined

that

the

residual clause of the ACCA was unconstitutionally vague, and that
Johnson v. United States, 135 S. Ct. 2551 (2015) announced a
substantive rule that applied retroactively on collateral review.
Petitioner timely seeks collateral relief within one year of this

The Court will also dismiss petitioner’s 28 U.S.C.
petition in 2:15-cv-168-FTM-29MRM by separate order.

1

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§

2241

new

right

being

retroactively

recognized

applicable,

by

28

the

Supreme

U.S.C.

§

Court

and

2255(f)(3),

and

made
the

government has waived any issues of procedural default because
petitioner is entitled to relief.

The government also concedes

that petitioner no longer qualifies for the Armed Career Criminal
Act (ACCA) enhancement.

Nonetheless, the government argues that

the significant departure from the applicable guideline range at
the

time

now

operates

to

preclude

a

lower

sentence

because

petitioner’s sentence is at the now 10 year maximum sentence.

The

government does concede to an error in the imposed 60 month term
of supervised release.
At
adopting

sentencing,
the

Presentence

after

application
Report,

considering
of

factual

guidelines

petitioner’s

Total

as

set

objections
forth

Offense

in

Level

and
the
was

determined to be 30, and his Criminal History Category was a
Category VI.

This resulted in a range of imprisonment of 180 to

210 months, and a range of supervised release of 3 to 5 years.
(Cr. Doc. #58, p. 15.)

At sentencing, the government described

the extensive assistance provided, and counsel for defendant set
forth the consequences of the assistance.
20.)

(Id., pp. 16-17, 18-

Having heard from counsel, the Court granted the motion for

the full four levels, and reduced petitioner’s Total Offense Level
by four levels to a 26.

Remaining at a Criminal History Category

VI, the resulting guideline range became 120 to 150 months of

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imprisonment.

The

Court

noted,

“[b]ut

for

your

assistance, you’d be looking at a mandatory 15.”

substantial

(Id., p. 33.)

After considering all the statutory factors, the Court imposed a
sentence of 120 months and a term of 5 years on supervised release.
Petitioner’s Total Offense Level, before applying the ACCA
enhancement was a 21 2, which is considerably lower than the Total
Offense

Level

of

33

that

was

applied

to

petitioner.

After

accounting for acceptance of responsibility, petitioner’s Enhanced
Offense Level of 30 became the starting point for the Court when
applying the substantial assistance motion.

Because petitioner’s

sentence increased under the unconstitutional application of the
ACCA enhancement from a sentence of a maximum of 10 years to a
minimum of 15 years, 18 U.S.C.

924(e)(1), and the Court did not

apply the four level downward departure from the correct Total
Offense Level 3, the Court finds that petitioner is entitled to a
full re-sentencing.

The Court will vacate the underlying criminal

judgment and appoint Lee Hollander to represent petitioner for the
re-sentencing. 4

This would have resulted in a guideline range of 77 to 96 months
of imprisonment. U.S. Sentencing Guidelines Manual, Ch. 5, Pt. A
(Sept. 2007).
2

Although the government is correct that the petitioner’s current
term of imprisonment falls within the 10 year statutory maximum
sentence, it essentially deprives petitioner of the downward
departure.
3

4

Attorney Lee Hollander was appointed and currently represents

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Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #61) is GRANTED.
2.

The deadlines in the July 13, 2016 Order (Cv. Doc. #11)

are moot.
3.

The

Judgment

in

a

Criminal

Case

(Cr.

Doc.

#53)

is

vacated.
4.

The

Clerk

shall

appoint

Lee

Hollander

to

represent

defendant for purposes of a full re-sentencing, and provide
a copy of this Order to Mr. Hollander.
5.

The United States Marshal’s Office shall facilitate and

effectuate the transportation of defendant for re-sentencing.
Defendant shall be available in Fort Myers on or before
October 21, 2016.

The United States Probation Office shall

issue a new Presentence Report and distribute copies of the
Presentence Investigation Report to appointed counsel, the
Office of the United States Attorney, and defendant on or
before October 14, 2016.

petitioner in United States v. Faircloth, 2:14-cr-76-FTM-38MRM,
and that case is set for sentencing on August 15, 2016. The Court
finds that appointing the same counsel for both cases is in
petitioner’s best interest.

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6.

The parties shall appear for a full re-sentencing before

the undersigned on, Monday, October 31, 2016, at 2:30 p.m.,
Courtroom A, Sixth Floor, Fort Myers, Florida.

A separate

notice will issue.
7.

The Clerk of the Court shall enter judgment in favor of

petitioner and close the civil file.

The Clerk is further

directed to place a copy of the civil Judgment in the criminal
file and to make a notation that the criminal Judgment has
been vacated.
DONE and ORDERED at Fort Myers, Florida, this
of July, 2016.

Copies:
Hon. Sheri Polster Chappell
Petitioner
AUSA

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15th

day