BRUMMET v. UNITED STATES OF AMERICA

Filing 31

ORDER re 30 Stipulation filed by RONALD BRUMMET - The Court agrees that Petitioner's previous sentence was unconstitutional and that a reduction is necessary pursuant to Johnson and Welch. The Court concludes that the parties' stipu lation is fair and just under the law and hereby GRANTS Petitioner's Motion pursuant to 28 U.S.C. § 2255. Petitioner shall be sentenced to time served to be followed by a 3-year term of supervised release. A Judgment and Commitment in th e associate criminal matter shall be forthcoming. Judgment consistent with this Order shall issue in this matter. This Order shall also be entered on the docket in the underlying criminal action, United States v. Brummett, Cause No. 1:05-cr-00183-LJM-DKL-1. Signed by Judge Larry J. McKinney on 3/23/2017. (LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RONALD BRUMMETT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:15-cv-01801-LJM-DKL

ORDER
Petitioner Ronald Brummett (“Petitioner”) and the United States of America (the
“Government”) have filed a stipulation regarding his motion for relief from the judgment in
Petitioner’s criminal matter, 1:05-cr-00183-LJM-MJD-1, pursuant to 28 U.S.C. § 2255,
Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct.
1257 (2016).
Petitioner was convicted as a felon in possession under 18 U.S.C. § 922(g). At
the time of sentencing, he was sentenced under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”), to a term of 180 months to be followed by a five year term of
supervised release; a Judgment and Conviction was entered to that effect on May 1,
2006. The three predicate felonies giving rise to Petitioner’s status under the ACCA were:
(1) & (2) two burglaries in Pinellas County, Florida; and (3) aggravated assault in Pinellas
County, Florida.
On June 26, 2015, the United States Supreme Court held the residual clause of
the ACCA unconstitutional. Johnson, 135 S. Ct. 2551. Subsequently, the U.S. Supreme

Court Seventh Circuit held that Johnson announced a new substantive rule of
constitutional law that the Supreme Court had categorically made retroactive. Welch, 136
S. Ct. at 1257.
By stipulation of the parties, Petitioner’s burglary convictions relied upon the ACCA
residual clause for classification as a violent felony; therefore, Petitioner and the
Government further “stipulate that a sufficient number of prior convictions which would
account for ACCA status do not exist.” Dkt. No. 30, ¶ 4. Moreover, based on the
underlying facts of the case and this analysis, the parties agree that the sentence imposed
in this case as unconstitutional in that it exceeded the otherwise applicable statutory
maximum penalty under 18 U.S.C. § 922(g)(1) of 10 years of incarceration and 3 years
of supervised release. Dkt. No. 30, ¶ 5. Petitioner has served in excess of the maximum
sentence allowable. Dkt. No. 30, ¶¶ 5-6. Therefore, the parties have stipulated that a
sentence of time served and a 3-year term of supervised release is sufficient, but not
greater than necessary. Dkt. No. 30, ¶ 7.
The Court agrees that Petitioner’s previous sentence was unconstitutional and that
a reduction is necessary pursuant to Johnson and Welch. The Court concludes that the
parties’ stipulation is fair and just under the law and hereby GRANTS Petitioner’s Motion
pursuant to 28 U.S.C. § 2255. Petitioner shall be sentenced to time served to be followed
by a 3-year term of supervised release. A Judgment and Commitment in the associate
criminal matter shall be forthcoming. Judgment consistent with this Order shall issue in
this matter.

This Order shall also be entered on the docket in the underlying criminal
action, United States v. Brummett, Cause No. 1:05-cr-00183-LJM-DKL-1.
IT IS SO ORDERED this 23d day of March, 2017.

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Sara J. Varner
INDIANA FEDERAL COMMUNITY DEFENDERS
[e-mail]
Brian Lee Reitz
OFFICE OF THE U.S. ATTORNEY
[e-mail]
James Robert Wood
OFFICE OF THE U.S. ATTORNEY
[e-mail]
USPO
USMS