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United States v. McCabe

United States District Court, D. Arizona

December 20, 2016

United States of America, Plaintiff/Respondent,
v.
Harry McCabe, Sr., Defendant/Movant.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         Pending before the Court is the Government's “Motion to Stay Further Proceedings on the Motion to Vacate Sentence” (Doc. 4). The Court has reviewed the parties' briefing (Docs. 4, 10, 11). For the reasons set forth herein, the Court will deny the Government's Motion (Doc. 4).

         I. DISCUSSION

         A. Background

         On November 29, 2012, a jury found Movant guilty on the following four counts:

i. Count 1: CIR-Assault with a Dangerous Weapon, a class C felony offense, in violation of 18 U.S.C. § 113(a)(3);
ii. Count 2: CIR-Assault Resulting in Serious Bodily Injury, a class C felony offense, in violation of 18 U.S.C. § 113(a)(6); and
iii. Counts 3 and 4: CIR-Use of a Firearm in a Crime of Violence, class A felony offenses, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

(CR-12-8135-PCT-JAT-1, Doc. 99).

         On March 4, 2013, the Court sentenced Petitioner to (i) concurrent 46-month prison terms on Counts 1 and 2 and (ii) concurrent 120-month prison terms on Counts 3 and 4. The sentences on Counts 3 and 4 are to run consecutively to the sentences on Counts 1 and 2. (Id. at Doc. 116).

         The Ninth Circuit affirmed Movant's convictions and sentences on direct appeal, and the U.S. Supreme Court denied certiorari review. On June 22, 2016, Movant filed a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “Motion to Vacate”) (Doc. 1). Movant challenges the constitutionality of his convictions on Counts 3 and 4 (use of a firearm in a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii)).

         Section 924(c) is a sentencing enhancement provision that sets forth mandatory sentences for defendants who “during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . .” The term “crime of violence” is defined as:

an offense that is a felony and -
(A) has as an element the use, attempted use, or threatened use of physical force against the person or ...

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