Melvin v. USA

Filing 17

ORDER granting 11 --motion to vacate/set aside/correct sentence (2255); vacating Doc. 31 in 8:13-cr-309; directing the clerk to ENTER JUDGMENT for Melvin and to CLOSE the case. Signed by Judge Steven D. Merryday on 10/26/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:13-cr-309-T-23EAJ
8:15-cv-109-T-23EAJ

ALBERT STANLEY MELVIN
/

ORDER
Under the terms of a plea agreement, Melvin pleaded guilty to possessing a
loaded Glock .45 caliber semi-automatic handgun in violation of 18 U.S.C. § 922(g).
The United States’ motion under USSG §5K1.1 for a one-level downward departure
allowed the imposition of a 140-month sentence, which is forty months below the
statutory minimum under the Armed Career Criminal Act (“ACCA”).
Melvin moves to vacate under 28 U.S.C. § 2255 and challenges his sentence.
This action proceeds based on both Melvin’s Second Amended Motion to Vacate
and his supporting memorandum. (Docs. 11 and 12) The motion to vacate asserts
two grounds for relief, each of which challenges his sentence under the ACCA. First,
Melvin alleges that trial counsel was ineffective for not opposing the use of a prior
robbery conviction, which Melvin contends was a “youthful offender adjudication,”
not an adult conviction, and consequently cannot support a sentence under the
ACCA. Second, Melvin alleges that his prior fleeing-to-elude conviction, which was

used under the residual clause of the ACCA, cannot support a sentence under the
ACCA based on Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), which holds
that the residual clause of the ACCA is unconstitutionally vague. The United States
admits (1) that Melvin is entitled both to retroactive application of Johnson and, as a
consequence, to re-sentencing because he no longer qualifies for an enhanced
sentence under the ACCA and (2) that Melvin’s maximum sentence without the
ACCA enhancement is ten years. See In re Rivero, 797 F.3d 986 (11th Cir. 2015) (“If
Rivero — like the petitioner in Bousley — were seeking a first collateral review of his
sentence, the new substantive rule from Johnson would apply retroactively.”). The
retroactive application of Johnson resolves each ground for relief.
Accordingly, the Second Amended Motion to Vacate Sentence under 28
U.S.C. § 2255 (Doc. 11) is GRANTED; the January 27, 2014, judgment, Doc. 31 in
Case No. 13-cr-309, is VACATED; and a separate order in Case No. 13-cr-309 will
schedule a prompt re-sentencing for Melvin. The clerk must enter a judgment for
Melvin in, and close, this case.
ORDERED in Tampa, Florida, on October 26, 2015.

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