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United States v. Lee

United States District Court, D. Minnesota

September 19, 2017

United States of America, Plaintiff/Respondent,
v.
Sherman Lee, Defendant/Petitioner.

          Andrew R. Winter, Assistant United States Attorney, Counsel for Respondent.

          Petitioner, pro se.

          MEMORANDUM OPINION AND ORDER

          MICHAEL J. DAVIS JUDGE

         I. Introduction

         This matter is before the Court on Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 471].

         II. Background

         On July 19, 2010, Petitioner pleaded guilty to Count 1 of the Superseding Indictment which charged Conspiracy to Distribute in Excess of 50 Grams of Actual Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 and Count 5 of the Superseding Indictment which charged Possession of a Firearm During a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

         The United States Probation Office prepared a Presentence Investigation Report ("PSR") advising that Petitioner was a Career Offender as set forth in the Sentencing Guidelines because he was at least 18 years old at the time he committed the instant offense, the crime of conviction was a controlled substances offense and because Petitioner had at least two prior felony convictions involving crimes of violence, namely a 1995 conviction for Second Degree Assault, and a 2007 conviction for Terroristic Threats. Because he was a Career Offender, § 4Bl.l(a) and (b) provided that the base offense level was 34 and the criminal history category was VI.

         The Court adopted the guideline calculations set forth in the PSR, which determined the applicable range of imprisonment for Count 1 to be 262 to 327 months. The sentence for Count 5 was a statutory mandatory sentence of seven years to be imposed consecutively to Count 1.

         On January 4, 2011, Petitioner was sentenced to a term of imprisonment on Count 1 for 240 months and on Count 5 for 84 months, to be served consecutively for a total term of imprisonment of 324 months. His sentence was affirmed on appeal. United States v. Sherman Lee, 441 Fed.Appx. 401 (8th Cir. 2011).

         On June 13, 2016, Petitioner filed this petition under § 2255 to vacate, set aside or correct his sentence. Petitioner argues that pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), his prior conviction for terroristic threats no longer falls within the definition of "crime of violence" set forth in the Sentencing Guidelines. He thus argues that he should not have been sentenced as a Career Offender under the Guidelines and asks that he be resentenced.

         Petitioner further argues that his conviction for possession of a firearm under 18 U.S.C. § 924(c) is invalid because the underlying conviction for conspiracy to distribute and possess with intent to distribute methamphetamine does not qualify as a violent crime for purposes of § 924(c)(3)(B).

         The government filed its opposition brief on March 17, 2017, asserting that Petitioner's first claim for relief is precluded in light of the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017), and that his second claim for relief is without merit. On June 20, 2017, Petitioner filed a request to voluntarily withdraw his petition in light of the Beckles decision. The Court took Petitioner's request under advisement, and ordered Petitioner to file a reply brief on or before September 5, 2017. Petitioner again requested the Court allow him to voluntarily withdraw his petition, stating "enlight [sp] of the decision on Beckles I know I'm not eligible for relief. Therefore, I am requesting this Court; respectfully, to dismiss the 2255 motion to vacate." (Doc. No. 489.)

         III. Motion for ...


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