McCreary v. USA

Filing 5

ORDER granting 4 Motion to Stay. Respondent shall have 60-days from the date the cases of Beckles v. UnitedStates and United States v. Ali are decided to file a response. Signed by District Judge Robert J. Conrad, Jr on 12/19/16. (ssh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00302-RJC
(3:06-cr-00190-RJC-1)
JUSAMUEL RODRIGUEZ MCCREARY, )
)
Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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)

ORDER

THIS MATTER is before the Court on consideration of Respondent’s motion to stay the
disposition of Petitioner’s § 2255 Motion to Vacate. (Doc. No. 4: Motion to Stay). Petitioner
does not oppose the motion.
In his § 2255 Motion to Vacate, Petitioner challenges his designation as a career offender
under § 4B1.2 of the U.S. Sentencing Guidelines Manual, and he relies on the Supreme Court’s
decision in United States v. Johnson, 135 S. Ct. 2551 (2015), in which the Court struck down the
residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), after concluding
that it violated due process because it was unconstitutionally vague.
In the motion to stay, Respondent cites the case of Beckles v. United States, No. 15-8544,
which is pending before the Supreme Court in which the Court will consider whether the
Johnson Court’s conclusion regarding the residual clause of the ACCA should apply to the
residual clause of the career offender guideline, and if so, whether Johnson should apply
retroactively on collateral review. The Court is also considering the issue of whether possession
of a sawed-off shotgun is a crime of violence under the Guidelines.
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Respondent also cites as a reason to stay this proceeding the case of United States v. Ali,
No. 15-4433 (4th Cir.) which is pending before the Fourth Circuit and addresses whether the
offense of robbery under the Hobbs Act still qualifies as a “crime of violence” following the
Johnson decision.
Because resolution of the issues involved in the Beckles and Ali cases may have a
bearing on the disposition of the issues in Petitioner’s case, the Court will grant Respondent’s
motion.
IT IS, THEREFORE, ORDERED that Respondent’s motion to stay is GRANTED,
(Doc. No. 4), and Respondent shall have 60-days from the date the cases of Beckles v. United
States and United States v. Ali are decided to file a response to Petitioner’s § 2255 Motion to
Vacate.
SO ORDERED.
Signed: December 19, 2016

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