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United States v. Rady

United States District Court, D. Arizona

January 9, 2017

United States of America, Plaintiff/Respondent,
v.
Larry James Rady, Defendant/Movant.

          TO HONORABLE FREDERICK J. MARTONE, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge

         Defendant/Movant Larry James Rady, who is represented by counsel, filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. (CV 16-1294 (“CV”) Doc. 1 and CR 04-0585 (“CR”) Doc. 101.) Plaintiff United States of America (the “government”) filed a Response, and Movant has filed a Reply. (CV Docs. 4, 5.)

         BACKGROUND[1]

          According to the pleadings, Movant had multiple convictions in Arizona state court for a variety of crimes, including armed robbery, attempted aggravated assault and assault with a deadly weapon. (CV Doc. 4 at 2 (citing to PSR ¶¶ 35-36, 39); CR Doc. 93 at 8.) Following these convictions, in 2004, Movant possessed four firearms (including a silencer registered to another person in the National Firearms Registration and Transfer Record) in violation of federal law. He was charged and convicted of Felon in Possession of a Firearm/Armed Career Criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At sentencing, and as contemplated by the plea agreement, his sentence (and the maximum and mandatory minimum ranges for the offense) was statutorily enhanced by the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On September 26, 2006, the Court imposed the mandatory minimum sentence of 180 months of incarceration and five years of supervised release (CR Doc. 94), with credit for time served dating back to June 2, 2004. (CV Doc. 4 at 2 (citing to PSR at 1).)

         In the § 2255 Motion, Movant alleges that his sentence was rendered unlawful by the Supreme Court's recent decision in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). Specifically, Movant claims that in the wake of Johnson, he no longer has three prior convictions qualifying as “violent felonies” for purposes of the ACCA. Movant argues that the Court should grant his § 2255 motion and resentence him to a term of imprisonment of not more than 10 years, to be followed by a term of supervised release not more than 3 years. He states that because he has served more than 10 years on the sentence imposed in the underlying criminal case, the Court should also order his immediate release from federal custody.

         In its Response, the government contends that the Court should address the merits of Movant's claim, and argues that the two separate 1974 armed robbery convictions and the 1983 attempted aggravated assault conviction are all valid predicates under the ACCA. As such, the government asserts that the Court should deny relief in this matter.

         DISCUSSION

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court examined language from the ACCA, which provides for a mandatory minimum sentence of 15 years of imprisonment for a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e). There are three “clauses” in the statute defining what type of prior crime qualifies as a “violent felony”:

• The “elements” or “force” clause: “has as an element the use, or attempted use, or threatened use of physical force against the person of another”;
• The “enumerated offenses” clause: “is burglary, arson, or extortion, [or] involves use of explosives” and
• The “residual” clause: “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

See 18 U.S.C. § 924(e)(2)(B). The Supreme Court held that imposing an increased sentence under ACCA's residual clause violates the Due Process Clause because the residual clause is impermissibly vague on its face. Because no “principled and objective standard” could identify what crimes fell under the language of the residual clause, the Supreme Court held that it “both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557. In so doing, the Court overruled its decisions in James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1 (2011), in which it had previously rejected vagueness challenges to the residual clause. See Johnson, 135 S.Ct. at 2563.

         The Johnson Court explicitly noted that its decision “does not call into question application of the [ACCA] to ... the remainder of the Act's definition of a violent felony.” 135 S.Ct. at 2563. This includes a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i), and a felony offense that “is burglary, ...


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