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Whitman v. USA

United States District Court, D. Arizona

February 12, 2019

Len Don Whitman, Petitioner,
v.
USA, Respondent.

          ORDER

          G. Murray Snow, Chief United States District Judge.

         Pending 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.

         BACKGROUND

         Because 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.

         DISCUSSION

         Whitman 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.

         I. Legal Standard

         This 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).

         II. Analysis

         A. Sentencing Guidelines

         To 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. ยง 924(e), was ...


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