United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT LARRY LEE’S MOTION
UNDER 28 U.S.C. § 2255, DOC. NO. 205
Michael Seabright Chief United States District Judge.
Larry Lee (“Defendant”) has filed a Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255
Motion”). Doc. No. 205. Based on the following, the
§ 2255 Motion is GRANTED, and an Amended Judgment
correcting Defendant’s sentence will be filed.
Government Concedes the § 2255 Motion Should Be Granted
Judgment of March 14, 2013, Defendant was convicted of (1)
possession of a stolen firearm, in violation of 18 U.S.C.
§ 922(j); (2) receiving stolen government property, in
violation of 18 U.S.C. § 641; and (3) felon in
possession of a firearm subsequent to three convictions for
violent felonies, in violation of 18 U.S.C. §§
922(g)(1) & 924(e)(1) (the Armed Career Criminal Act
(“ACCA”)). Doc. No. 174. On February 17, 2016,
Defendant filed his § 2255 Motion, challenging the ACCA
conviction (i.e., the enhancement resulting in a
fifteen-year mandatory minimum sentence) based on Johnson
v. United States, 135 S.Ct. 2551 (2015), which
invalidated the ACCA’s residual clause as
unconstitutionally vague. Doc. No. 205. Meanwhile, on March
11, 2016, the court granted Defendant’s Motion for
Release on Bail pending a decision on the merits of the
§ 2255 Motion, which was stayed pending decisions by the
Supreme Court in Welch v. United States, 136 S.Ct.
1257 (2016) (applying Johnson retroactively to cases
on collateral review) (decided April 18, 2016), and
Mathis v. United States, 136 S.Ct. 2243 (2016)
(reiterating methodology for determining whether a prior
conviction qualifies as an ACCA violent felony) (decided June
government now agrees, in light of Welch and
Mathis, that Defendant’s prior burglary
convictions are not “violent felonies” under the
ACCA and that Defendant is no longer an “armed career
criminal.” Doc. No. 226. Given those concessions, and
based on the court’s review of the record and
applicable caselaw, the court GRANTS the § 2255 Motion.
The ACCA judgment and sentence are VACATED and SET
ASIDE. See 28 U.S.C. § 2255(b).
Amended Judgment Shall Issue
parties, however, disagree as to the precise remedy.
Defendant seeks a formal re-sentencing on an “expedited
and streamlined basis, ” after consideration of a new
sentencing guidelines calculation but without
“adher[ing] to the extended sentencing procedures
contemplated by [Local Criminal Rule] 32.1.” Doc. No.
229, Def. Suppl. Mem. at 2, 4. On the other hand, the
government contends that a de novo re-sentencing is
unnecessary under the facts of this case -- rather, it argues
that the court should issue an amended or corrected judgment
that sentences Defendant to “time served.” Doc.
No. 230, Gov’t Suppl. Mem. at 4.
§ 2255 motion is granted, the court “‘shall
vacate and set the judgment aside’ and do one of four
things: ‘discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear
appropriate.’” United States v. Barron,
172 F.3d 1153, 1157 (9th Cir. 1999) (en banc) (quoting 28
U.S.C. § 2255). The statute gives the court broad
discretion. See, e.g., United States v.
Jones, 114 F.3d 896, 897 (9th Cir. 1997) (“[T]he
statute gives district judges wide berth in choosing the
proper scope of post-2255 proceedings.”); United
States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997)
(“[Section 2255] confers upon the district court broad
and flexible power in its actions following a successful
§ 2255 motion.”) (quoting United States v.
Davis, 112 F.3d 118, 121 (3d Cir. 1997)). “This
broad and flexible power is derived from the equitable nature
of habeas corpus relief.” Handa, 122 F.3d at
691 (citations omitted).
“[a]lthough the judgment is a single unitary act, the
clear implication of the statute is that vacating the
judgment does not prevent the reinstatement of unchallenged
counts when the court decides to resentence or to
correct the sentence.” Barron, 172 F.3d at
1157 (emphasis added). In post-2255 proceedings,
“[w]hile [a judge is] permitted to consider all aspects
of the sentence, [a judge is] not required to do so.”
Jones, 114 F.3d at 897. And “[t]he text of
§ 2255 clearly affords the district courts the authority
to ‘correct’ a prisoner’s unlawful sentence
without conducting a formal ‘resentencing’
hearing[.]” United States v. Hadden, 475 F.3d
652, 669 (4th Cir. 2007) (brackets omitted). Moreover,
although a sentence is considered a “package, ”
Barron, 172 F.3d at 1160, “nothing in the
sentencing-package theory forbids the district courts from
doing what the text of § 2255 clearly permits[.]”
Hadden, 475 F.3d at 669.
the wide discretion the court has under § 2255, and
considering the specific facts and posture of this case, it
is appropriate to issue an Amended Judgment correcting
Defendant’s sentence to “time served.” That
is, a de novo re-sentencing is unnecessary. The parties agree
that Defendant -- who has been released on bail since March
11, 2016 -- should serve no additional time in prison on all
the counts of conviction, based on an intervening change in
the law made retroactive to cases on collateral
review. Additional proceedings to prepare and
fully consider an updated presentence report, possible
objections thereto, a possible motion by the government for
an upward variance, as well as other requirements of Federal
Rules of Criminal Procedure 32 and 43, are simply
unnecessary. And an Amended Judgment with a “time
served” sentence appropriately “corrects”
Defendant’s original sentence by removing the ACCA
enhancement from the original Judgment. Cf. Hadden,
475 F.3d at 667 (reasoning, when addressing § 2255, that
“[a]s a descriptive matter, we think it is more
accurate to say that the Amended Judgment
‘corrected’ Hadden’s original sentence . .
. . To ‘correct’ means to ‘make or set
right.’”) (quoting Merriam Webster’s
Collegiate Dictionary 280 (11th ed. 2004) (brackets
this approach (issuing an Amended Judgment, where
appropriate, without resentencing de novo) is consistent with
the procedure being taken by many district courts facing
Johnson issues. See, e.g., Doc. No. 230-1,
Gov’t Ex. 1, Second Amended Judgment in United
States v. Mayer, Cr. No. 05-60072-1-AA (D. Or. Feb. 23,
2016); Hadley v. United States, 2016 WL 3746567, at
*3 (E.D. Tenn. July 7, 2016) (granting a
Johnson-based § 2255 motion, finding
“correction of Petitioner’s sentence to be the
most appropriate form of relief, ” and concluding that
Petitioner’s “term of imprisonment will be
reduced to a ‘time served’ sentence”);
McBee v. United States, 2016 WL 3962996, at *3 (E.D.
Tenn. July 21, 2016) (same); Battle v. United
States, 2016 WL 3946779, at *2 (M.D. Ala. July 20, 2016)
(granting a Johnson-based § 2255 motion,
concluding that “an amended judgment will be entered in
the criminal case to reflect a sentence of time served and a
term of supervised release of three years”); United
States v. Husbands, 2016 WL 3702676, at *2 (N.D. Fla.
July 12, 2016) (granting a Johnson-based § 2255
motion, reducing defendant’s incarceration to time
served, and directing clerk to immediately enter an amended
judgment reflecting the change).
considering the parties’ arguments, it is also apparent
that Defendant primarily seeks a de novo re-sentencing to
create a specific, determinable “over-sentence”
period by fixing a new sentence below the amount of time he
has already served. Defendant has contended that such a
period might be applicable under 18 U.S.C. § 3585(b)
(entitled “Credit for prior custody”) should, for
example, he later face imprisonment if his supervised release
is revoked under 18 U.S.C. § 3583(e)(3). See,
e.g., Doc. No. 229, Def. Suppl. Mem. at 6-7. The
government objects to the creation of ...