Bailey v. United States of America

Filing 19

ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AND DIRECTING CLERK TO ENTER ORDER OF PRODUCTION AND TO SET RESENTENCING HEARING. Signed by Judge J. Daniel Breen on 9/12/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
WILLIE BAILEY,
Petitioner,
v.

No. 1:16-cv-01173-JDB-egb

UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
UNDER 28 U.S.C. § 2255 AND
DIRECTING CLERK TO ENTER ORDER OF PRODUCTION AND
TO SET RESENTENCING HEARING
_____________________________________________________________________________
Following his June 23, 2016 motion to vacate, set aside, or correct his sentence 1 pursuant
to 28 U.S.C. § 2255 (“Petition”), (Docket Entry (“D.E.”) 1), Petitioner, Willie Bailey, filed an
emergency motion through counsel on June 29, 2017, requesting an immediate ruling following
the Sixth Circuit’s decision in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), cert.
granted, 138 S. Ct. 1592 (mem.) (2018) (No. 17-765), (D.E. 8). 2
I.

BACKGROUND AND PROCEDURAL HISTORY

On June 24, 2013, a federal grand jury charged Petitioner with three counts of being a
felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and

1

Bailey’s civil docket lists the wrong corresponding criminal case.
underlying criminal docket is 1:13-cr-10061-JDB-1.
2

The correct

All record citations are to documents filed in Case Number (“No.”) 16-cv-01173, unless
otherwise noted.

924(e)(1). 3 (No. 13-cr-10061, D.E. 2; D.E. 1.) At a hearing on February 26, 2014, Bailey
entered a guilty plea to all three counts. (Id., D.E. 22.) There was no written plea agreement,
(id.), although the United States later moved for the application of a three-point reduction for
acceptance of responsibility in his total offense level under the United States Sentencing
Guidelines (“Guidelines” or “U.S.S.G.”). 4 (No. 13-cr-10061, D.E. 24.)
In April 2014, the United States Probation Office (“USPO”) submitted the Presentence
Report (“PSR”) to the parties, setting forth the calculation of Defendant’s Guidelines sentencing
range. The PSR assigned a base offense level of 24, see U.S.S.G. § 2K2.1(a)(2), which was
enhanced to 33 due to his status as an armed career criminal under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), see U.S.S.G. § 4B1.4(b)(3)(B). (PSR ⁋⁋ 15, 21.) There
were six predicate convictions for the enhancement: (1)-(2) Tennessee state convictions for thirddegree burglary in 1987 and 1989, (id. ⁋⁋ 27, 29); (3) a Tennessee conviction for attempted
burglary, (id. ⁋ 31); (4) a Tennessee conviction for aggravated burglary, (id. ⁋ 35); (5) a
Tennessee conviction for robbery, (id. ⁋ 36); and (6) a Tennessee conviction for aggravated
robbery, (id. ⁋ 37). After applying the three-point reduction, Bailey’s adjusted offense level was
30.

“Based upon a total offense level of 30 and a criminal history category of VI, the

[G]uideline[s] imprisonment range” was calculated to be 168 to 210 months.

(PSR ¶ 60

(emphasis omitted).) However, because “the statutorily authorized minimum sentences [were]

3

“Count I charged Bailey with possession of ammunition for a .30-30 rifle. Count II
charged Bailey with possession of ammunition for a .20 gauge shotgun, and Count III charged
Bailey with possession of ammunition for a .12 gauge shotgun.” United States v. Bailey, 634 F.
App’x 473, 474 (6th Cir. 2015).
4

Except where noted, all references to the Guidelines are to the 2013 Guidelines. United
States Sentencing Commission, Guidelines Manual (Nov. 2013); (see No. 13-cr-10061, D.E. 90
at PageID 104.)
2

greater than the minimum of the applicable [G]uideline[s] range . . . the [G]uideline[s] range
[was] 180 months to 210 months.” 5 (Id. (emphasis omitted).)
The Government submitted its position with respect to the sentencing factors on April 29,
2014, indicating that it did not object to any part of the PSR. (No. 13-cr-10061, D.E. 25.) On
June 10, 2014, Bailey filed his objections to the PSR, contending, among other things, that five
of his six prior convictions (excluding robbery) identified as ACCA predicates were not violent
felonies under the statute. (Id., D.E. 28 at PageID 32-37.)
The sentencing hearing was held on December 5, 2014. (Id., D.E. 40.) The Court “found
that all six of Bailey’s prior convictions, flagged by the PSR, qualified as violent felonies for
purposes of the ACCA.” Bailey, 634 F. App’x at 477; (see No. 13-cr-10061, D.E. 46 at PageID
89-99; PSR ⁋⁋ 27, 29, 31, 35-37.) In overruling Bailey’s “objection that his 1987 and 1989
convictions under Tennessee’s third-degree burglary statute could not be predicate offenses for
purposes of the ACCA following the Supreme Court’s decision in Descamps [v. United States,
570 U.S. 254 (2013)],” the Court “f[ound] itself bound by [the Sixth Circuit]’s prior decision in
United States v. Caruthers, 458 F.3d 459, 473-76 (6th Cir. 2006)” (concluding that Tennessee
third-degree burglary is a violent felony under the ACCA. Bailey, 634 F. App’x at 474; (No. 13cr-10061, D.E. 46 at PageID 91-97; PSR ⁋⁋ 27, 29.) “Because the district court found that
Bailey qualified as an armed career criminal, 18 U.S.C. § 924(e)(1) required the [C]ourt to
impose a sentence of at least 180 months.” Bailey, 634 F. App’x at 475; (see No. 13-cr-10061,
D.E. 46 at PageID 104.) The Court sentenced Petitioner to the statutory minimum and three
years of supervised release. Bailey, 634 F. App’x at 475; (No. 13-cr-10061, D.E. 46 at PageID
108; No. 13-cr-10061, D.E. 40.)
5

“Because [Bailey] qualifie[d] under the [ACCA], he face[d] a mandatory minimum of
180 months.” (PSR, Sentencing Recommendation at p. 2.)
3

Bailey appealed his sentence, “argu[ing] that two of his convictions cannot qualify as
violent felonies and that the residual clause of the ACCA is unconstitutionally vague.” Bailey,
634 F. App’x at 473. The Sixth Circuit affirmed, finding that the inmate’s aggravated burglary,
robbery, and aggravated robbery convictions qualified as predicate offenses under the ACCA.
Id. at 476-77. The Circuit declined to “consider Bailey’s alternative arguments about whether
his other convictions qualify as violent felonies,” as it determined that this Court “correctly
found that three of Bailey’s prior convictions constitute violent felonies.” Id. at 477. The inmate
filed a petition for writ of certiorari, which was denied. Bailey v. United States, 136 S. Ct. 846
(mem.) (2016).
On June 23, 2016, Bailey filed his § 2255 Petition, requesting relief under Johnson v.
United States, 135 S. Ct. 2551 (2015). (D.E. 1.) On June 29, 2017, Petitioner sought a ruling on
his Petition after the Sixth Circuit’s decision in United States v. Stitt, 860 F.3d 854 (6th Cir.
2017) (en banc) (holding that Tennessee aggravated burglary was no longer a violent felony
under the ACCA), cert. granted, 138 S. Ct. 1592 (mem.) (2018) (No. 17-765).
The USPO issued a memorandum on October 5, 2017, addressing relevant ACCA cases
pertaining to Bailey’s armed career criminal status, including Stitt, and other issues set forth in
the Petition. The memorandum indicated that the inmate’s robbery and aggravated robbery
convictions constituted violent felonies—which Petitioner conceded, (D.E. 12 at PageID 65–
66)—and, conversely, that attempted burglary and aggravated burglary convictions did not—
which the Government conceded, (D.E. 13 at PageID 87). Thus, as the memorandum correctly
recognized, the remaining question was whether Bailey’s 1987 and 1989 third-degree burglary
convictions constituted violent felonies. (See PSR ⁋⁋ 27, 29.) The memorandum suggested,

4

based on the law at the time it was written, that Bailey’s prior convictions for third-degree
burglary under Tenn. Code Ann. § 39-3-404 qualified as violent felonies under the ACCA.
On October 12, 2017, the Court directed Petitioner to submit his written position in light
of the USPO’s memorandum. (D.E. 10.) In his October 19, 2017 filing, counsel for Bailey
maintained that his client should be afforded relief under § 2255, (D.E. 12), while the
Government responded in opposition, (D.E. 13).
The Court held this matter in abeyance in November 2017 pending a decision from the
Sixth Circuit regarding whether Tennessee third-degree burglary qualified as a violent felony
under the ACCA, as several cases then on appeal hinged on that issue. See Mitchell v. United
States, No. 2:17-cv-02341, 2017 WL 2861805 (W.D. Tenn. Jul. 5, 2017), appeal docketed, No.
17-5904 (6th Cir. Aug. 9, 2017); Cradler v. United States, No. 2:14-cv-02339-JPM-dkv, D.E. 39
(W.D. Tenn. Dec. 29, 2016), rev’d and remanded, 891 F.3d 659 (6th Cir. 2018); Hill v. United
States, No. 4:16-cv-75-TRM, 2016 WL 6892764 (E.D. Tenn. Nov. 22, 2016), appeal remanded,
No. 16-6764 (6th Cir. Jun. 8, 2018) (remanding in light of Cradler).
On June 5, 2018, the Sixth Circuit issued its opinion in Cradler v. United States, holding
that a 1978 conviction under Tennessee’s 1973 third-degree burglary statute did not qualify as a
violent felony under the ACCA. 891 F.3d 659. This Court then held a status conference on July
12, 2018. (D.E. 16.)
At the conference, Respondent argued that Cradler did not apply to the present matter
because it pertained only to the 1973 version of Tennessee’s third-degree burglary statute, while
Bailey’s two third-degree burglary convictions occurred in 1987 and 1989. However, at the
hearing, the Government had not yet located the text of the version of the statute that applied to
Bailey’s two prior convictions.

Counsel for Petitioner disagreed with Respondent and

5

emphasized the portion of its October 19, 2017 filing discussing Walker v. United States, No. 14cv-02021, 2017 U.S. Dist. LEXIS 104358 (W.D. Tenn. Apr. 20, 2017), which “analyze[ed] a
1986 third-degree burglary conviction under the more recent pre-1989 burglary statute, Tenn.
Code Ann. § 39-3-404(a), (b).” (D.E. 12 at PageID 74.) The Court granted the parties additional
time to file supplemental briefing pertaining to the applicability of Cradler to Bailey’s 1987 and
1989 Tennessee third-degree burglary convictions.
On August 24, 2018, the Government submitted its position to the Court, acknowledging
that Bailey is entitled to resentencing pursuant to current Sixth Circuit case law. (D.E. 18 at
Page ID 131–32.) Namely, Respondent conceded that “four of Bailey’s six ACCA predicates no
longer qualify as violent felonies: his attempted burglary conviction (under Johnson), his [two]
third-degree burglary convictions (under Cradler), and his aggravated burglary conviction (under
Stitt).” 6 (Id. at Page ID 131.) The Government has further submitted that Petitioner’s Guidelines
range absent the ACCA enhancement would be 77 to 96 months, per the Probation Office’s
October 5, 2017 memo. (Id. at PageID 132 (citing D.E. 13-1 at PageID 112–16.))
II.

LEGAL STANDARDS

A prisoner seeking to vacate his sentence under § 2255 “must allege either: ‘(1) an error
of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid.’” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 391, 496–
97 (6th Cir. 2003)).
Under the ACCA, a person who is convicted of being a felon in possession of a firearm
and who has “three previous convictions . . . for a violent felony or a serious drug offense . . .
6

The Government has taken the position that the Sixth Circuit wrongly decided Stitt, but is
awaiting the Supreme Court’s decision in that case to assert that argument.
6

committed on occasions different from one another . . . shall be . . . imprisoned not less than
fifteen years.” 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that: (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another”; (2) “is
burglary, arson, or extortion, [or] involves use of explosives”; or (3) “otherwise involves conduct
that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
III.

DISCUSSION

A. History of Tennessee’s Third-Degree Burglary Statute
The same version of Tennessee’s third-degree burglary statute applied to Bailey’s 1987
and 1989 convictions. 7 “Tennessee revised its burglary statutes on November 1, 1989, as part of
the State’s comprehensive criminal code revision.” Norwood v. United States, Nos. 3:04-CR141-TAV-HBG-1, 3:16-cv-601-TAV, 2016 WL 6892748, at *2 n.1 (E.D. Tenn. Nov. 22, 2016);
see Caruthers, 458 F.3d at 474 (6th Cir. 2006) (explaining that a new Tennessee burglary statute
went into effect on November 1, 1989). The inmate’s first Tennessee third-degree burglary
conviction arose from his offense conduct on June 28, 1987, (D.E. 13-1 at PageID 92, 96; PSR ⁋
27), while his second resulted from his conduct on February 21, 1989, (D.E. 13-1 at PageID 106,
109; PSR ⁋ 29), both occurring before the 1989 revision. The third-degree burglary statute that
was in effect before November 1, 1989 was enacted in 1982. 8 See United States v. Anderson, 72

7

In the Shepard documents provided by Respondent, there are only references to
Tennessee third-degree burglary, and no statutes are presented. (D.E. 13-1.)
8

“The pre-1989 version of the Tennessee Code criminalized six types of burglary
offenses: (1) first-degree burglary, Tenn. Code Ann. § 39-3-401 (1982); (2) breaking after entry,
Tenn. Code Ann. § 39-3-402 (1982); (3) second-degree burglary, Tenn. Code Ann. § 39-3-403
(1982); (4) third-degree burglary, Tenn. Code Ann. § 39-3-404(a)(1) (1982); (5) safecracking,
Tenn. Code Ann. § 39-3-404(b)(1) (1982); and (6) breaking into vehicles, Tenn. Code Ann. § 393-406 (1982).” Lowe v. United States, Nos. 3:05-CR-22-TAV-CCS-1, 3:16-CV-714-TAV, 2017
7

F.3d 130 (Table) (6th Cir. 1995) (citing “Tenn. Code. Ann. § 39-3-404 (1982) (repealed 1989)”).
Thus, the same statute was in effect at the time of Petitioner’s two third-degree burglary acts.
While Bailey was sentenced under the 1982 version for both offenses, the Cradler decision
concerns the 1973 enactment. See Cradler, 891 F.3d at 668.
B. Text of Tennessee’s Pre-1989 Third-Degree Burglary Statute
At the status conference, the Government indicated that it had been unable to locate the
text of the Tennessee third-degree burglary statute under which Bailey had previously been
convicted. Comparing the similar text of the 1973 and pre-1989 versions of the Tennessee thirddegree burglary statute, Cradler’s holding also would apply to the pre-1989 version under which
Bailey was twice convicted.
Cradler determined that because the first paragraph of Tenn. Code Ann. § 39-904 (1973)
“criminalizes more conduct than generic burglary and, consequently, does not qualify as the
enumerated offense of ‘burglary[,]’ . . . it is not a violent felony for ACCA purposes.” Cradler,
891 F.3d at 671.

“[T]he Tennessee statute under which Cradler was convicted,” the first

paragraph of “Tennessee Code Annotated § 39-904[,] . . . reads as follows:
39-904. Burglary in third degree—Safe cracking—Penalty.—Burglary
in the third degree is the breaking and entering into a business house, outhouse, or
any other house of another, other than a dwelling house, with the intent to commit
a felony. Every person convicted of this crime shall be imprisoned in the
penitentiary for not less than three (3) years nor more than ten (10) years. . . .
Cradler, 891 F.3d at 668 (bolded in original) (underlining added) (citing “Tenn. Code Ann. § 39904 (1973) (amended and renumbered)”).

WL 1366916, at *2 n.2 (E.D. Tenn. Apr. 12, 2017) (emphasis added) (“Tennessee law now
prohibits only three types of burglary: (1) burglary, Tenn. Code Ann. § 39-14-402 (2016); (2)
aggravated burglary, Tenn. Code Ann. § 39-14-403 (2016); and (3) especially aggravated
burglary, Tenn. Code Ann. § 39-14-404 (2016).”).
8

Petitioner argued in his October 19, 2017 filing that although the statute at issue in
Cradler, § 39-904, “was later restyled to pre-1989 subsections under Tenn. Code Ann § 39-3404(a) and (b) respectively,” which is the version of the statute under which Bailey was
convicted, “the offense conduct language remained the same.” (D.E. 12 at PageID 69–70 n.2
(citation omitted) (explaining that the “only difference” between the pre-1989 statute and the
earlier version in Cradler “was that, in the older statute, there was no division into subsections
(a) and (b), the statute simply contained two paragraphs”); see D.E. 12 at PageID 74 (insisting
that the pre-1989 third-degree burglary statute, “Tenn. Code Ann. § 39-3-404(a), (b), which
contained labeled subsections . . . . would be the form of the statute under which Mr. Bailey was
convicted”).)
In a reported decision from 2006, the Sixth Circuit quoted the 1982 version of
Tennessee’s third-degree burglary statute, Tenn. Code. Ann. § 39-3-404—the same version
under which Petitioner was previously convicted in 1987 and 1989: “Burglary in the third
degree is the breaking and entering into a business house, outhouse, or any other house of
another, other than dwelling house, with the intent to commit a felony.” Caruthers, 458 F.3d at
475 n.8 (emphasis added) (quoting Tenn. Code Ann. § 39-3-404(a)(1) (1982)); see also United
States v. Morrison, No. 2:15CR00003, 2017 WL 3386305, at *3 (W.D. Va. Aug. 7, 2017)
(“Burglary in the third degree [in Tennessee] is the breaking and entering into a business house,
outhouse, or any other house of another, other than a dwelling house, with the intent to commit a
felony.” (alteration added) (quoting “Tenn. Code Ann. § 39-3-404(a)(1) (1982 Repl. Vol.)”)).
C. Analyzing Bailey’s Convictions in Light of Cradler
Under the Supreme Court’s and the Sixth Circuit’s framework for analyzing whether a
Tennessee third-degree burglary conviction qualified as a violent felony under the ACCA, the

9

Court must “(1) determin[e] which statutory elements should be compared to the generic
definition; and (2) determin[e] the full range of conduct encompassed by those statutory
elements.” Cradler, 891 F.3d at 667; see Mathis v. United States, 136 S. Ct. 2243, 2249 (2016);
Descamps v. United States, 570 U.S. 254, 257–58 (2013); Johnson v. United States, 559 U.S.
133, 138 (2010); Taylor v. United States, 495 U.S. 575, 599–600, 602 (1990). In Cradler, the
Sixth Circuit found that the defendant “was clearly convicted based on the set of elements
contained in the first paragraph of § 39-904,” as his indictment, which “makes no mention of a
vault, safe or other secure place,” “charged [him] with ‘burglary in the 3rd degree’ for breaking
and entering into a junior high school with the intent to steal the school’s goods and chattels.”
Id. at 669; see supra pp. 8–9.
Regarding Petitioner’s 1987 conviction, the Shepard documents indicate that a grand jury
charged Bailey with one count of “burglary in the third degree by unlawfully, feloniously and
burglariously breaking into and entering the business house of Keith Buchanan in the night time
with intent unlawfully, feloniously, and burglariously to take, steal, and carry away the personal
property therein contained and did feloniously and burglariously take, steal, and carry away the
goods and chattels of Keith Buchanan.” (D.E. 13-1 at PageID 92; see D.E. 13-1 at PageID 94–
97 (indicating that Bailey entered a guilty plea to the third-degree burglary charge).) As for the
inmate’s 1989 conviction, the indictment asserted that the inmate “unlawfully, willfully, and
feloniously did break and enter into the business house of the City of Stanton, with the intent to
commit a felony; larceny; to wit: with the intent and for the purpose of the unlawful and
felonious taking, stealing, and carrying away of the goods and property, contained in said
business house, and belonging to the City of Stanton, contrary to the Statute, and against the

10

peace and dignity of the State of Tennessee.” (D.E. 13-1 at PageID 100, 104; see D.E. 13-1 at
PageID 106–10 (reflecting that Petitioner entered a plea to the third-degree burglary charge).)
Under the pre-1989 version of § 39-3-404, subsections (a) and (b) constitute two separate
types of third-degree burglary convictions: the building provision and the safecracking provision,
respectively. Lowe, 2017 WL 1366916, at *2 (citing Hill, 2016 WL 6892764 (“holding that
burglary-of-a-building and safecracking are distinct crimes and, as a result, that Tennessee’s pre1989 third-degree burglary statute is divisible under Mathis v. United States, 136 S. Ct. 2243,
2249 (2016)”), appeal remanded, No. 16-6764 (6th Cir. Jun. 8, 2018) (remanding in light of
Cradler)).
Cradler dictates the outcome in this matter.

891 F.3d at 669 (concluding that the

defendant was clearly convicted based on the first paragraph of § 39-904, which corresponds to
subsection (a) of the pre-1989 version of the same statute, because the indictment “ma[de] no
mention of a vault, safe or other secure place”). Here, both of Bailey’s indictments fail to
mention any vault, safe, or other secure place, and both involve breaking and entering, with the
intent to take, steal, and carry away property. (D.E. 13-1 at PageID 92, 100, 104.) Accordingly,
under the framework for analyzing ACCA predicate offenses, the inmate’s convictions should be
analyzed under Tenn. Code Ann. § 39-3-404(a)(1) (1982) (the building provision), which
includes the same relevant text as the first paragraph of Tenn. Code. Ann. § 39-904 (1973), the
version of the statute on which the Cradler decision rested.
Likewise, the final step under the armed career criminal framework is clear under
Cradler. 891 F.3d at 667. “[T]o determine the full range of conduct . . . encompassed by each
statutory element. . . . courts must consult the pronouncements of the state’s highest court to
determine the full range of conduct that is encompassed by each statutory element.” Id. at 669

11

(citing Johnson v. United States, 559 U.S. at 138). In Cradler, the court found that “the
Tennessee Supreme Court case that is most helpful in determining the full range of conduct
encompassed by § 39-904’s first paragraph is Fox v. State, 214 Tenn. 694, 383 S.W.2d 25
(1964),” as well as the case “on which Fox’s holding is based[,] Page v. State, 170 Tenn. 586, 98
S.W.2d 98 (1936).” Id. The Circuit then determined that “Fox’s holding, like Page’s before it,
stands for the proposition that, although the first paragraph of § 39-904 criminalizes ‘the
breaking and entering into a business house,’ this paragraph should be interpreted to also
encompass conduct committed by someone already lawfully inside the business house.” Id. at
670 (emphasis in original). Accordingly, the Sixth Circuit determined that because “§ 39-904’s
first paragraph criminalizes more conduct than generic burglary and, consequently, does not
qualify as the enumerated offense of ‘burglary’ . . . . it is not a violent felony for ACCA
purposes.” Id. at 670–71.
Here, because subsection (a)(1) of the pre-1989 statute contains the same text as the first
paragraph of § 39-904, the same analysis and conclusion from Cradler applies. See id. at 668;
Caruthers, 458 F.3d at 475 n.8. Therefore, Cradler’s holding that a conviction under the first
paragraph of § 39-904 (1973) does not qualify as a violent felony under the ACCA likewise
applies to Bailey’s two convictions under Tenn. Code Ann. § 39-3-404(a)(1) (1982), thus leaving
him with only two predicate offenses under the ACCA. Id. at 671; see supra pp. 4–5.
IV.

CONCLUSION

In light of the foregoing, the Petition is GRANTED. (D.E. 1; see D.E. 8.) Further, the
Clerk is DIRECTED to enter an order of production and to set a resentencing hearing in case
number 1:13-cr-10061-JDB-1. See supra p. 1 n.1.

12

IT IS SO ORDERED this 12th day of September 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

13