Lee v. USA

Filing 6

ORDER GRANTING DEFENDANT LARRY LEE'S MOTION UNDER 28 U.S.C. § 2255 MOTION, DOC. NO. 205. Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 8/4/2016. (afc) Order filed 08/04/2016 as to case USA v. LARRY LE E, CR 12-00133-JMS-02. CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
LARRY LEE,
(02),
)
)
Defendant.
)
)
_______________________________ )

Cr. No. 12-00133 JMS (02)
(Civ. No. 16-00070 JMS-KJM)
ORDER GRANTING DEFENDANT
LARRY LEE’S MOTION UNDER 28
U.S.C. § 2255, DOC. NO. 205

ORDER GRANTING DEFENDANT LARRY LEE’S MOTION
UNDER 28 U.S.C. § 2255, DOC. NO. 205
I. INTRODUCTION
Defendant Larry Lee (“Defendant”) has filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (“§ 2255 Motion”). Doc. No. 205.1 Based on the following, the § 2255
Motion is GRANTED, and an Amended Judgment correcting Defendant’s
sentence will be filed.
///
///

1

“Doc. No.” refers to the court’s docket entry in Cr. No. 12-00133 JMS (02), rather than
the docket of the parallel civil case.

II. DISCUSSION
A.

The Government Concedes the § 2255 Motion Should Be Granted
By Judgment of March 14, 2013, Defendant was convicted of

(1) possession of a stolen firearm, in violation of 18 U.S.C. § 922(j); (2) receiving
stolen government property, in violation of 18 U.S.C. § 641; and (3) felon in
possession of a firearm subsequent to three convictions for violent felonies, in
violation of 18 U.S.C. §§ 922(g)(1) & 924(e)(1) (the Armed Career Criminal Act
(“ACCA”)). Doc. No. 174.2 On February 17, 2016, Defendant filed his § 2255
Motion, challenging the ACCA conviction (i.e., the enhancement resulting in a
fifteen-year mandatory minimum sentence) based on Johnson v. United States, 135
S. Ct. 2551 (2015), which invalidated the ACCA’s residual clause as
unconstitutionally vague. Doc. No. 205. Meanwhile, on March 11, 2016, the
court granted Defendant’s Motion for Release on Bail pending a decision on the
merits of the § 2255 Motion, which was stayed pending decisions by the Supreme
Court in Welch v. United States, 136 S. Ct. 1257 (2016) (applying Johnson
retroactively to cases on collateral review) (decided April 18, 2016), and Mathis v.
United States, 136 S. Ct. 2243 (2016) (reiterating methodology for determining

2

Given the ACCA conviction, Defendant was sentenced to the mandatory-minimum
term of 180 months imprisonment. Doc. No. 174, Judgment at 3. The statutory maximum for
the other Counts was ten years. See 18 U.S.C. §§ 641 & 924(a)(2).
2

whether a prior conviction qualifies as an ACCA violent felony) (decided June 23,
2016).
The government now agrees, in light of Welch and Mathis, that
Defendant’s prior burglary convictions are not “violent felonies” under the ACCA
and that Defendant is no longer an “armed career criminal.” Doc. No. 226. Given
those concessions, and based on the court’s review of the record and applicable
caselaw, the court GRANTS the § 2255 Motion. The ACCA judgment and
sentence are VACATED and SET ASIDE.3 See 28 U.S.C. § 2255(b).
B.

An Amended Judgment Shall Issue
The parties, however, disagree as to the precise remedy. Defendant

seeks a formal re-sentencing on an “expedited and streamlined basis,” after
consideration of a new sentencing guidelines calculation but without “adher[ing]
to the extended sentencing procedures contemplated by [Local Criminal Rule]
32.1.” Doc. No. 229, Def. Suppl. Mem. at 2, 4. On the other hand, the
government contends that a de novo re-sentencing is unnecessary under the facts
of this case -- rather, it argues that the court should issue an amended or corrected

3

Count Five of the indictment charged a violation of 18 U.S.C. § 922(g)(1) (felon in
possession of a firearm) with an ACCA enhancement under 18 U.S.C. § 924(e)(1). Only the
ACCA enhancement is set aside; the § 922(g)(1) conviction -- with a ten-year maximum
sentence pursuant to 18 U.S.C. § 924(a)(2) -- remains.
3

judgment that sentences Defendant to “time served.” Doc. No. 230, Gov’t Suppl.
Mem. at 4.
When a § 2255 motion is granted, the court “‘shall vacate and set the
judgment aside’ and do one of four things: ‘discharge the prisoner or resentence
him or grant a new trial or correct the sentence as may appear appropriate.’”
United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999) (en banc) (quoting
28 U.S.C. § 2255). The statute gives the court broad discretion. See, e.g., United
States v. Jones, 114 F.3d 896, 897 (9th Cir. 1997) (“[T]he statute gives district
judges wide berth in choosing the proper scope of post-2255 proceedings.”);
United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997) (“[Section 2255]
confers upon the district court broad and flexible power in its actions following a
successful § 2255 motion.”) (quoting United States v. Davis, 112 F.3d 118, 121
(3d Cir. 1997)). “This broad and flexible power is derived from the equitable
nature of habeas corpus relief.” Handa, 122 F.3d at 691 (citations omitted).
Further, “[a]lthough the judgment is a single unitary act, the clear
implication of the statute is that vacating the judgment does not prevent the
reinstatement of unchallenged counts when the court decides to resentence or to
correct the sentence.” Barron, 172 F.3d at 1157 (emphasis added). In post-2255
proceedings, “[w]hile [a judge is] permitted to consider all aspects of the sentence,
4

[a judge is] not required to do so.” Jones, 114 F.3d at 897. And “[t]he text of
§ 2255 clearly affords the district courts the authority to ‘correct’ a prisoner’s
unlawful sentence without conducting a formal ‘resentencing’ hearing[.]” United
States v. Hadden, 475 F.3d 652, 669 (4th Cir. 2007) (brackets omitted).
Moreover, although a sentence is considered a “package,” Barron, 172 F.3d at
1160, “nothing in the sentencing-package theory forbids the district courts from
doing what the text of § 2255 clearly permits[.]” Hadden, 475 F.3d at 669.
Given the wide discretion the court has under § 2255, and considering
the specific facts and posture of this case, it is appropriate to issue an Amended
Judgment correcting Defendant’s sentence to “time served.” That is, a de novo resentencing is unnecessary. The parties agree that Defendant -- who has been
released on bail since March 11, 2016 -- should serve no additional time in prison
on all the counts of conviction, based on an intervening change in the law made
retroactive to cases on collateral review.4 Additional proceedings to prepare and
fully consider an updated presentence report, possible objections thereto, a
possible motion by the government for an upward variance, as well as other
requirements of Federal Rules of Criminal Procedure 32 and 43, are simply

4

A “time served” sentence of approximately 56 months, see Doc. No. 212, Gov’t Mem.
at 3, is well below the statutory maximum of 120 months for the non-ACCA counts.
5

unnecessary. And an Amended Judgment with a “time served” sentence
appropriately “corrects” Defendant’s original sentence by removing the ACCA
enhancement from the original Judgment. Cf. Hadden, 475 F.3d at 667
(reasoning, when addressing § 2255, that “[a]s a descriptive matter, we think it is
more accurate to say that the Amended Judgment ‘corrected’ Hadden’s original
sentence . . . . To ‘correct’ means to ‘make or set right.’”) (quoting Merriam
Webster’s Collegiate Dictionary 280 (11th ed. 2004) (brackets omitted)).
Additionally, this approach (issuing an Amended Judgment, where
appropriate, without resentencing de novo) is consistent with the procedure being
taken by many district courts facing Johnson issues. See, e.g., Doc. No. 230-1,
Gov’t Ex. 1, Second Amended Judgment in United States v. Mayer, Cr. No. 0560072-1-AA (D. Or. Feb. 23, 2016); Hadley v. United States, 2016 WL 3746567,
at *3 (E.D. Tenn. July 7, 2016) (granting a Johnson-based § 2255 motion, finding
“correction of Petitioner’s sentence to be the most appropriate form of relief,” and
concluding that Petitioner’s “term of imprisonment will be reduced to a ‘time
served’ sentence”); McBee v. United States, 2016 WL 3962996, at *3 (E.D. Tenn.
July 21, 2016) (same); Battle v. United States, 2016 WL 3946779, at *2 (M.D.
Ala. July 20, 2016) (granting a Johnson-based § 2255 motion, concluding that “an
amended judgment will be entered in the criminal case to reflect a sentence of time
6

served and a term of supervised release of three years”); United States v.
Husbands, 2016 WL 3702676, at *2 (N.D. Fla. July 12, 2016) (granting a
Johnson-based § 2255 motion, reducing defendant’s incarceration to time served,
and directing clerk to immediately enter an amended judgment reflecting the
change).5
In considering the parties’ arguments, it is also apparent that
Defendant primarily seeks a de novo re-sentencing to create a specific,
determinable “over-sentence” period by fixing a new sentence below the amount
of time he has already served. Defendant has contended that such a period might
be applicable under 18 U.S.C. § 3585(b) (entitled “Credit for prior custody”)
should, for example, he later face imprisonment if his supervised release is
revoked under 18 U.S.C. § 3583(e)(3). See, e.g., Doc. No. 229, Def. Suppl. Mem.
at 6-7. The government objects to the creation of such a “time bank,” and argues
that it is an improper basis for convening a de novo re-sentencing hearing. Doc.
No. 230, Gov’t Suppl. Mem. at 3.
The court concludes that it is inappropriate to consider this factor, one
way or the other (i.e., either to set a period of “banked” overserved time, or to deny

5

This court has also taken this approach by stipulation in United States v. Carter, Cr. No.
07-00150 JMS (01) (D. Haw. July 28, 2016) (Doc. No. 112), and United States v. Leach, Cr. No.
05-00531 JMS (D. Haw. July 21, 2016) (Doc. No. 95).
7

the creation of such a period), in choosing the most appropriate remedy under
§ 2255. It would be improper to consider such a factor under 18 U.S.C. § 3553(a)
if re-sentencing anew, and it is likewise improper (and speculative) to consider it
under § 2255. To be clear, the court is not imposing a “time served” sentence
merely to deny Defendant such potential relief.
But even if the possible creation of a “time bank” was an appropriate
consideration, Defendant’s motivation for seeking a re-sentencing is contrary to
sound sentencing policy. In a related context (where a defendant sought to utilize
potentially over-served time to justify release on bail pending a decision on a
§ 2255 motion), the court recognized that such use of a “reservoir” of over-served
time reflects poor policy and is subject to potential abuse. See United States v.
Leach, 2016 WL 2344197, at *3 (D. Haw. May 3, 2016) (“If a ‘time bank’ of
overserved time existed for such use, it could easily be abused. A defendant on
supervised release could feel free to violate the terms of supervised release, secure
in the knowledge that he could cash in his account if the court revoked his
supervised release.”). It is also contrary to sentencing policies set forth in the
Guidelines. As this court noted in Leach,
[t]he creation or use of such a “time bank” is also
contrary to U.S.S.G. § 7B1.3(e) (Policy Statement

8

regarding revocation of supervised release), which
provides:
Where the court revokes probation or supervised
release and imposes a term of imprisonment, it
shall increase the term of imprisonment
determined under subsections (b), (c), and (d)
above by the amount of time in official detention
that will be credited toward service of the term of
imprisonment under 18 U.S.C. § 3585(b), other
than time in official detention resulting from the
federal probation or supervised release violation
warrant or proceeding.
U.S. Sentencing Guidelines Manual § 7B1.3(e). And the
corresponding commentary explains that § 7B1.3(e) “is
designed to ensure that the revocation penalty is not
decreased by credit for time in official detention other
than time in official detention resulting from the federal
probation or supervised release violation warrant or
proceeding.” Id. cmt. n.3
Leach, 2016 WL 2344197, at *3 n.6. And so, if the creation of a potential “time
bank” were a factor that a court could or should consider in deciding whether to
conduct a re-sentencing after a meritorious § 2255 motion, it would weigh against
conducting a de novo re-sentencing. Stated differently, at a re-sentencing the
court would exercise its discretion and avoid the creation of any “time bank” by
re-sentencing Defendant to time served.
Finally, given that Defendant’s ACCA judgment and sentence have
been vacated, the corresponding maximum term of supervised release (which was
9

five years, based on the ACCA conviction) is now three years. See 18 U.S.C.
§§ 3559(a) & 3583(b). Accordingly, when considering the equities -- including
that Defendant may have indeed over served a period of months on his sentence,
and that he has been on bail for several months without receiving supervised
release credit -- the court will impose a two-year term of supervised release as to
each Count, to run concurrently.6
III. CONCLUSION
Defendant’s § 2255 Motion is GRANTED. Under § 2255(b), the
March 14, 2013 Judgment is VACATED and SET ASIDE. The court will issue an
Amended Judgment with a term of imprisonment of “time served,” with a
corresponding two-year term of supervised release (as to each Count, to run
concurrently).
Upon filing this Order and the Amended Judgment correcting the
terms of imprisonment and supervised release, the Clerk of the Court shall cause a
copy of the Amended Judgment to be served on the Bureau of Prisons
Designation and Sentence Computation Center, located in Grand Prairie, Texas,

6

The court will also remove the $ 800 restitution requirement set forth in the March 14,
2013 Judgment, as the court understands that it has been paid.
10

via facsimile or email so that the terms of it can be implemented by the Bureau of
Prisons.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 4, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

United States v. Lee, Cr. No. 12-00133 JMS (02), Order Granting Defendant Larry Lee’s Motion
under 28 U.S.C. § 2255, Doc. No. 205

11