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United States v. Clark

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

April 17, 2018

UNITED STATES OF AMERICA
v.
FREDDIE D'JUAN CLARK

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.

         This matter comes before the court for consideration on the petitioner Freddie D'Juan Clark's Motion to Correct Sentence under 28 U.S.C. § 2255 [105]. The Government has filed a response to the motion. The court has considered the motion and response as well as the relevant case law and evidence, and is now prepared to rule.

         PROCEDURAL BACKGROUND

         On September 18, 2013, Freddie Clark was charged with one count of armed bank robbery in violation of 18 U.S.C. § 2113, one count of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), one count of making a bomb threat by means of cellular telephone, and one count of being a felon in possession of a firearm. Clark pleaded guilty to the armed bank robbery and brandishing a firearm counts. Clark was sentenced to sixty-two months imprisonment.

         In a 2015 case, Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court struck down the residual clause of 18 U.S.C. § 924(e)(2)(B): the Armed Career Criminal Act (ACCA). This allowed for certain individuals who were sentenced under this clause in this act to petition the government for resentencing or to set aside their sentences. In June of 2016, petitioner Clark, who was sentenced under 18 U.S.C. § 924(c)(3), not the ACCA, believing that the wording of § 924(c)(3)'s residual clause is parallel to the wording of ACCA's residual clause, petitioned this court to “vacate and correct” his sentence pursuant to 28 U.S.C. § 2255.

         STANDARDS AND APPLICABLE STATUTES

         18 U.S.C. § 924(e)(2)(B) states:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and

         18 U.S.C. § 924(c)(3) provides:

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of ...

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