McKenzie v. USA

Filing 4

ORDER granting Govt's 3 Motion to Stay to place this case in abeyance, and matter is hereby held in abeyance pending Supreme Court's decision in Beckles. Thereafter, Govt shall have 60 days from date Supreme Court decides Beckles within which to file its response in this matter. Signed by District Judge Martin Reidinger on 9/13/16. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00204-MR
CRIMINAL CASE NO. 1:97-cr-00203-MR-1

ALEXANDER SHERMAN MCKENZIE, )
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the motion of the United States
requesting that the Court enter an order holding this action in abeyance. [CV
Doc. 3].1 According to the government’s motion, defense counsel does not
object to its request. [Id.].
Petitioner pleaded guilty to bank robbery, in violation of 18 U.S.C. §
2113(d), and using and carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1).

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[CR Doc. 29].

The

Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting the document is listed on the docket in the
civil case file number 1:16-cv-204-MR, or the letters “CR” denoting the document is listed
on the docket in t§ he criminal case file number 1:97-cr-203-MR-1.

presentence report noted that Petitioner had at least two prior qualifying
convictions that triggered the Career Offender enhancement under §4B1.2
of the Sentencing Guidelines: a 1992 North Carolina conviction for assault
on a government official, and two North Carolina convictions for assault on
a female, one in 1995 and the other in 1996. The Court sentenced Petitioner
as a Career Offender to a total term of 280 months’ imprisonment. [Id.].
On June 23, 2016, Petitioner commenced this action by filing a petition
pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his petition, Petitioner
contends that, in light of Johnson v. United States, 135 S. Ct. 2551 (2015),
his prior North Carolina convictions for assault on a government official and
assault on a female no longer qualify as “crimes of violence” under the
Guidelines. [Id. at 4-5]. Consequently, Petitioner argues his Career Offender
designation is improper and, thus, his sentence is unlawful. [Id.].
In response to the petition, the government has filed a motion to hold
this proceeding in abeyance. [CV Doc. 3]. The government notes that this
case will be affected by the Supreme Court’s decision next Term in Beckles
v. United States, 616 Fed. Appx. 415 (11th Cir.), cert. granted, 2016 WL
1029080 (U.S. June 27, 2016) (No. 15-8544). [Id. at 2]. One of the questions
presented in Beckles is whether Johnson applies retroactively to cases
collaterally challenging federal sentences enhanced under the residual
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clause in U.S.S.G. § 4B1.2(a)(2). The residual clause invalidated in Johnson
is identical to the residual clause in the Career Offender provision of the
Guidelines, § 4B1.2(a)(2) (defining "crime of violence").
Based upon the reasons given by the government, and without
objection by Petitioner, the Court concludes that the government’s motion
should be granted.
ORDER
IT IS, THEREFORE, ORDERED that the government’s motion to place
this case in abeyance [CV Doc. 3], is hereby GRANTED and this matter is
hereby held in abeyance pending the Supreme Court’s decision in Beckles.
Thereafter, the government shall have 60 days from the date the Supreme
Court decides Beckles within which to file its response in this matter.
IT IS SO ORDERED.

Signed: September 13, 2016

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