United States District Court, D. Arizona
S. Willett United States Magistrate Judge
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
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. §
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.
(CR-12-8135-PCT-JAT-1, Doc. 99).
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).
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)).
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 ...