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Pearson v. United States

United States District Court, N.D. Alabama, Southern Division

June 29, 2017

RODERICK CORLION PEARSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          R. DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE.

         This case is before the court on Petitioner's Motion to Vacate Under 28 U.S.C. § 2255. (Civil Docket, Doc. # 1).[1] The court appointed the Federal Public Defender to represent Petitioner, and the Public Defender has filed a supplement to the § 2255 motion. (Civil Docket, Doc. # 6). Respondent has filed a brief addressing Petitioner's claims (Civil Docket, Doc. # 8), and the motion to vacate is now under submission. After careful review, and for the reasons explained below, Petitioner's motion to vacate is due to be granted in part and denied in part.

         I. Factual Background and Procedural History

         On May 7, 2007, Petitioner pled guilty to: (1) one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (“Count Three”); (2) one count of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(C)(i) (“Count Four”); and (3) one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count Five”). (See Criminal Docket, Second Minute Entry dated May 7, 2007). (See also Criminal Docket, Doc. # 51 at 4-5) (describing the charges in the indictment and the guilty plea to three of the five charges filed against Petitioner). A jury then convicted Petitioner of a second count of armed bank robbery (“Count One”) and a second count of brandishing a firearm during and in relation to a crime of violence (“Count Two”). (Criminal Docket, Doc. # 27). (See also Criminal Docket, Doc. # 51 at 4-5).

         Petitioner's Presentence Investigation Report (“PSR”) recommended that Counts Three and Five be considered a separate offense group from Count One.[2] (See PSR at ¶¶ 19-32). After a multiple-count adjustment, the PSR calculated a total offense level of 26 for Counts One, Three, and Five. (Id. at ¶¶ 34-41). Then, it enhanced Petitioner's offense level to 34, pursuant to the career offender guideline, U.S.S.G. § 4B1.1, because (a) the offenses at issue were crimes of violence, (b) Petitioner was over 18 years old when he committed the offenses at issue, and (c) Petitioner previously had been convicted of two crimes of violence. (Id. at ¶ 42). According to the PSR, Petitioner's prior convictions for crimes of violence included attempted robbery and discharging a firearm into an unoccupied vehicle. (Id.). Moreover, the PSR stated that Petitioner was an armed career criminal and subject to the mandatory minimum sentence in 18 U.S.C. § 924(e) -- otherwise known as the Armed Career Criminal Act (“ACCA”) -- for his § 922(g)(1) conviction. (Id. at ¶ 46). Ultimately, the PSR recommended a total guideline range of 646 to 711 months' imprisonment for all five counts. (Id. at ¶¶ 44-45, 87).

         Petitioner objected to several aspects of the PSR's guideline calculation. (Criminal Docket, Doc. # 28). Among other objections, he first argued that the PSR incorrectly applied a career offender enhancement because his conviction for discharging a firearm into an unoccupied vehicle was not a crime of violence. (Id. at 1). Second, he claimed that his attempted robbery conviction was not a crime of violence because he had acted as an accomplice during the attempt. (Id. at 2). Third, he argued that the PSR incorrectly calculated the guideline range for Count Five (the § 922(g) conviction) because he had not been previously convicted of a crime of violence. (Id.). Finally, Petitioner claimed that his mandatory minimum sentence should only have been seven years' imprisonment because Counts Two and Four were his first § 924(c) convictions. (Id. at 3).

         At sentencing, the court overruled Petitioner's objections to the crimes of violence used to justify the career offender enhancement. (Criminal Docket, Doc. # 40 at 30-31). The court adopted the PSR's guideline range of 646 to 711 months' imprisonment. (Id. at 31). Also, it found that Petitioner was subject to the enhanced mandatory minimum sentence in the ACCA for Count Five because he had been convicted of three separate violent felonies. (Id. at 31-32). But, the court granted Petitioner a substantial downward variance from the guideline range. (Id. at 39-40).

I am going to vary down as my authority under Booker allows me to do to a sentence of 180 months as to Counts One, Three and Five separately with each count to run concurrently. . . .
As to Count Two, the defendant shall be imprisoned for a term of 84 months. As to Count Four, he shall be imprisoned for a term of 300 months. And the sentence in Count Two and Count Four shall run consecutively to the sentences imposed in Counts One, Three and Five and consecutive with each other.

(Id.). The court acknowledged that a 564-month imprisonment sentence amounted to “a tremendous amount of time, ” but it was the minimum sentence Petitioner could receive for his convictions. (Id. at 40). Following objections from Petitioner's and Respondent's attorneys, the court explained why the sentence was reasonable:

THE COURT: I do think the sentence is reasonable. I think it was largely driven by the consecutive sentences required for the crime of the 924 violations obviously, but I do think it's reasonable under the circumstances, in light of particularly the effects on the victims, the multiple bank robberies that occurred within a close time, although they're not due to be grouped. And also I think the variance is reasonable, because I think the sentence imposed is reasonable in light of the conduct you've engaged in. I really tried to hit the right mark on finding a sentence that's sufficient but not greater than necessary to achieve the statutory purposes of sentencing, and I think the 564 months does that. I think 646 months, I think that extra time would not achieve the statutory purposes of sentencing and would not -- it would essentially be too great a punishment in this case.

(Id. at 43-44).

         On appeal, the Eleventh Circuit affirmed Petitioner's convictions and sentences. (Criminal Docket, Doc. # 51 at 13). The Eleventh Circuit rejected Petitioner's claim that a conviction for discharging a firearm into an unoccupied vehicle did not qualify as a crime of violence under the Sentencing Guidelines. (Id. at 9-11). Relying on an earlier unpublished opinion, the Eleventh Circuit explained that such a conviction was a crime of violence because “discharging a firearm into a dwelling -- occupied or unoccupied -- involved a potential risk of physical injury.” (Id. at 10) (citing United States v. Rabb, 248 F. App'x 133, 134 (11th Cir. 2007)).

         In 2009, Petitioner filed a motion to vacate under § 2255. (Case No. 2:09-cv-08041-RDP-PWG, Doc. # 1). Among other things, Petitioner claimed that the court erroneously sentenced him to a mandatory minimum sentence under the ACCA because he was actually, factually, and legally innocent of the predicate violent felonies used to justify that sentence. (Id. at 12). A Magistrate Judge recommended denying the claim because he found that Petitioner had not been sentenced under the ACCA.[3] (Case No. 2:09-cv-08041-RDP-PWG, Doc. # 13 at 11-12). After reviewing Petitioner's objections, the court affirmed the Magistrate Judge's recommendation to deny Petitioner's initial motion to ...


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