United States District Court, D. Arizona
G. Murray Snow, Chief United States District Judge.
before the Court is Petitioner Len Don Whitman's Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. s 2255 (Doc. 1). On August 17, 2018, Magistrate Judge
Eileen S. Willett issued a Report and Recommendation
(“R&R”) recommending that the motion be
denied and dismissed with prejudice. (Doc. 31). Mr. Whitman
filed timely objections to the R&R. For the following
reasons, the Court will deny Petitioner's Motion and
accept the recommendation of the R&R.
no party has objected to the factual and procedural
background as set forth in the R&R, the Court adopts the
background as an accurate account.
asserts that when he was sentenced for a sexual abuse
conviction, the Court improperly used his prior Arizona
robbery conviction in determining that he was a criminal
offender for sentencing purposes. Because the Supreme Court
has not recognized the right that Whitman seeks to assert,
the Court will deny his petition as untimely.
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). “[T]he
district judge must review the magistrate judge's
findings and recommendations de novo if objection is
made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original). District courts are not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985).
qualify as a career offender for sentencing guidelines, a
person must have two prior convictions that qualify either as
a “crime of violence” or a “controlled
substance offense.” The instant offense must also be a
felony that qualifies as a “crime of violence” or
a “controlled substance offense.” See
U.S.S.C. § 4B1.1. Under the sentencing guidelines, a
“crime of violence” is defined as a crime that is
punishable by a term exceeding one year that:
a. has as an element the use, attempted use, or threatened
use of physical force against the person of another, U.S.S.G.
§ 4B1.2(a)(1) or;
b. is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of injury to another,
See U.S.S.G. § 4B1.2(a)(2). The first prong of
this definition is commonly referred to as the “force
clause.” The second prong is split into two clauses,
the first part is known as the “enumerated offenses
clause, ” and the second part is known as the
“residual clause.” The Supreme Court recently
held in Johnson v. United States, 135 S.Ct. 2551
(2015), that the residual clause in the Armed Career Criminal
Act, 18 U.S.C. § 924(e), was ...