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Westbrook v. United States

United States District Court, N.D. Mississippi, Oxford Division

April 11, 2018

MARCUS WESTBROOK PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          Sharion Aycock U.S. DISTRICT JUDGE

         This matter comes before the court on the motion of Marcus Westbrook to vacate, set aside, or correct his sentence under 28 U.S.C.A. §2255. The government has responded to the motion, and the matter is ripe for resolution.

         Facts and Procedural Posture

         Westbrook was indicted for aiding and abetting armed bank robbery in violation of 18 U.S.C.A. §2113(a) and (d) (Count I) and brandishing a firearm in the furtherance of a violent crime in violation of 18 U.S.C.A. §924(c)(1)(A) (Count II). ECF doc. 1. Westbrook pleaded guilty to Counts I and II. ECF doc. 60. As a result, Westbrook was sentenced to serve a term of 28 months on Count I and 84 months on Count II, to be served consecutively. ECF doc. 120. Westbrook appealed his sentence, which was affirmed on May 2, 2012. ECF doc. 142. On June 23, 2016, Westbrook filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C.A. §2255. ECF doc. 240. Westbrook asserts that, pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his conviction for aiding and abetting an armed bank robbery in Count I does not qualify as a crime of violence. As such, Westbrook argues that his sentence in Count II is improper. For the reasons discussed herein, Westbrook is not entitled to relief under 28 U.S.C.A. §2255.

         Scope of §2255 Review

         There are four grounds upon which a federal prisoner may seek to vacate, set aside, or correct his sentence: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose the sentence; (3) that the sentence exceeds the statutory maximum sentence; or (4) that the sentence is “otherwise subject to collateral attack.” 28 U.S.C. §2255; see United States v. Cates, 952 F.2d 149, 151 (5thCir.1992). The scope of relief under §2255 is the same as that of a petition for a writ of habeas corpus. Cates, 952 F.2d at 151.

         A defendant seeking relief under 28 U.S.C. §2255 may not do so to raise issues that could have been raised on appeal. United States v. Walling, 982 F.2d 447, 448-449 (10th Cir. 1992). A petitioner may not raise constitutional issues for the first time on post-conviction collateral review unless he shows cause for failing to raise the issue on direct appeal and actual prejudice resulting from the error. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992), cert. denied, 506 U.S. 1007 (1992); United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). The burden of showing “cause, ” an “objective factor external to the defense, ” rests with the petitioner. McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No other types of errors may be raised on collateral review unless the petitioner demonstrates that the error could not have been raised on direct appeal, and if not corrected, would result in a complete miscarriage of justice. Pierce, 959 F.2d at 1301; Shaid, 937 F.2d at 232. Further, if a claim is raised and considered on direct appeal, a defendant may not raise the issue in a later collateral attack. Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).

         The Johnson Decision

         Westbrook asserts that under Johnson, supra, his conviction for aiding and abetting an armed bank robbery is not a crime of violence and, as such, his conviction and sentence in Count II is invalid. In Johnson, supra, the Supreme Court considered the constitutionality of the “residual clause” of the Armed Career Criminal Act. The A.C.C.A. provides for the enhanced sentencing of a convicted felon who “has three previous convictions … for a violent felony or a serious drug offense, or both….” 18 U.S.C.A. §924(e)(1). The A.C.C.A. further defines a “violent felony” as a crime punishable by more than one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

18 U.S.C.A. §924(e)(2)(B)(emphasis added). The Johnson decision specifically addresses the “residual clause” of subsection (ii), which is italicized above. The Court found that, for the purposes of the A.C.C.A., “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557. As such, the Johnson Court ultimately held that the residual clause of the A.C.C.A. was unconstitutionally vague.[1] Id. at 2563.

         Westbrook's sentence

         However, Westbrook was not sentenced pursuant to the residual clause of the A.C.C.A., 18 U.S.C.A. §924(e)(2)(B)(ii), which was the subject of the Johnson decision. On the contrary, in Count I, Westbrook pleaded guilty to aiding and abetting armed bank robbery pursuant to 18 U.S.C.A. ยง2113(a) and (d). In Count II, Westbrook pleaded guilty to using, carrying, and ...


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