Vegas v. United States of America

Filing 5

ORDER granting 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment in favor of Petitioner and to close the case. Signed by Judge Susan C Bucklew on 12/9/2016. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TORREN DARNAI VEGAS
v.

Case No: 16-cv-02951-T-24TBM
15-cr-00067-T-24TBM

UNITED STATES OF AMERICA
_________________________________/
ORDER
This cause comes before the Court on Petitioner Torren Darnai Vegas’s motion to vacate,
set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. Civ. Doc. 1; Crim.
Doc. 72. The Government does not oppose the motion. Civ. Doc. 4. As explained below, the
motion is GRANTED.
On March 12, 2015, a grand jury charged Petitioner with three counts: possession with
intent to distribute heroin, cocaine base, cocaine, and marijuana in violation of 21 U.S.C. §§ 841(a),
841(b)(1)(C), and 841(b)(1)(D) (Count One); possession of a firearm in furtherance of the crime
charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); and felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Three). Crim. Doc. 1. Count
Three was based on the crime of carrying a concealed firearm, to which Petitioner pled guilty on
September 21, 2007, Case No. 2007CF003290, Manatee County Florida. The state court judge
withheld adjudication and placed Vegas on 18 months’ probation, which was subsequently
terminated on September 5, 2008.
Petitioner pleaded guilty to Counts One and Three, and on October 20, 2015, Petitioner
was sentenced to 60 months’ imprisonment to run currently as to Count One and Count Three.
Petitioner then filed a notice of appeal, but he later moved for and was granted voluntary dismissal
of that appeal. See Crim. Doc. 63. Petitioner, represented by counsel, timely filed his § 2255

motion on October 18, 2016, arguing he is innocent of the felon-in-possession offense (Count III),
because he had no prior felony conviction. The prior felony conviction relied upon by the
Government was not a felony conviction because adjudication had been withheld. Civ. Doc. 1 at
4.
The Government does not oppose the § 2255 motion, agreeing with the Eleventh Circuit’s
decision in United States v. Clarke, 822 F.3d 1213, 1214 (11th Cir. 2016), which held that a
withhold of adjudication under Florida law does not qualify as a predicate felony conviction for
purposes of 18 U.S.C. § 922(g)(1). Civ. Doc. 4 at 1–2; See also Clarke, 822 F.3d at 1214–15.
Accordingly, the Court finds that Petitioner’s § 2255 motion should be granted. The Court
hereby vacates and sets aside the judgment and sentence as to Count Three (felon in possession of
a firearm in violation of 18 U.S.C. § 922(g) (1)) that was entered against Petitioner. (Crim. Doc.
47). The Clerk is directed to enter judgment in favor of Petitioner and to close the civil case.
Additionally, the Clerk is directed to set Torren Darnai Vegas for a re-sentencing. Petitioner Torren
Darnai Vegas must be present at the sentencing. The Probation Office is directed to prepare an
amended presentence investigation report and disclose to both the Government and Petitioner prior
to sentencing.
DONE AND ORDERED at Tampa, Florida, this 9th day of December, 2016.

Copies to:
United States Probation Office

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