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United States v. Calvert

United States District Court, E.D. Washington

April 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN L. CALVERT, Defendant.

          ORDER GRANTING JOINT MOTION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255

          EDWARD F. SHEA Senior United States District Judge

         Before the Court is a Joint Motion for Habeas Corpus Relief Under 28 U.S.C. § 2255, ECF No. 554. The United States Attorney's Office and Defendant John L. Calvert, through his attorney, Alison K. Guernsey, agree that because of the statutory language in effect at the time of his offense, Mr. Calvert is “actually innocent” of the material fact that enhanced his sentence for Count 3. The parties therefore ask the Court to correct this “clear constitutional error” by immediately entering an amended judgment. For the reasons articulated below, the Court grants the parties' motion.

         I. FACTUAL BACKGROUND

         The parties' motion - and the Ex Post Clause violation it seeks to remedy - comes before this Court via a long and circuitous path.

         On March 20, 2001, a jury convicted Mr. Calvert on four counts: (1) Conspiracy to Retaliate Against a Witness, in violation of 18 U.S.C. § 371; (2) Retaliating Against a Witness, in violation of 18 U.S.C. § 1513(b); (3) Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g). ECF No. 225. On July 16, 2001, the Court sentenced Mr. Calvert to a total term of 330 months' imprisonment: 60 months' imprisonment on Count 1; 120 months' imprisonment on Count 2, concurrent with Count 1; 120 months' imprisonment on Count 4, 90 months of which to run consecutive to Counts 1 and 2; and 120 months' imprisonment on Count 3, consecutive to all other counts. ECF No. 247.

         Mr. Calvert appealed his conviction and sentence, ECF No. 250, but the Ninth Circuit Court of Appeals rejected the Defendant's arguments and affirmed his conviction on all counts. See United States v. Calvert, 48 F.App'x 634 (9th Cir. 2002) (unpublished); ECF No. 298. However, the Ninth Circuit remanded the case for resentencing because it held that this Court had improperly applied a 4-level increase under § 2K2.4 of the U.S. Sentencing Guidelines. Id.

         On February 12, 2003, Mr. Calvert was resentenced to a total term of 270 months' imprisonment: 60 months on Count 1; 90 months on Counts 2 and 4, concurrent with each other but consecutive to Count 1; and 120 months on Count 3, consecutive to all other counts. ECF No. 317.

         Mr. Calvert again appealed his sentence. ECF No. 318. The Ninth Circuit held that his sentence exceeded the “total punishment” as calculated under U.S.S.G. § 5G1.2 and remanded the case for resentencing. United States v. Calvert, 75 F.App'x 663 (9th Cir. 2003) (unpublished). On August 19, 2004, this Court resentenced Mr. Calvert to a total term of 207 months' imprisonment: 60 months on Count 1; 87 months on Counts 2 and 4, concurrent to each other as well as Count 1; and 120 months on Count 3, consecutive to all other counts. ECF No. 350.

         In November 2005, after an appeal by the Government, ECF No. 354, and in light of United States v. Booker, 543 U.S. 200 (2005), the Ninth Circuit remanded yet again for resentencing because this Court had indicated it would have imposed a greater sentence if it were not bound by the Guidelines. See United States v. Calvert, 142 F.App'x 969 (9th Cir. 2005) (unpublished). On November 30, 2006, this Court resentenced Mr. Calvert for a third time, for a total term of 270 months' imprisonment: 60 months on Count 1; 90 months on Counts 2 and 4 to run concurrent with each other but consecutive with Count 1; and 120 months on Count 3 to run consecutive to all other counts. ECF No. 433. Mr. Calvert appealed his sentence, ECF No. 435, but the Ninth Circuit affirmed the judgment. See United States v. Calvert, 511 F.3d 1237 (9th Cir. 2008).

         On September 18, 2008, Mr. Calvert filed a Motion under 28 U.S.C. § 2255, in which he alleged several grounds for relief, including an unrelated ex post facto argument relating to the Guidelines, but did not raise the ex post facto issue currently before the Court. See ECF No. 455. On February 27, 2009, the Court entered an order denying Mr. Calvert's § 2255 motion. ECF No. 465. Mr. Calvert sought to appeal but was denied a certificate of appealability. ECF Nos. 467 & 473.

         On July 16, 2013, Mr. Calvert filed a motion labeled as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, ECF No. 483, but the Court construed it as a § 2255 motion and denied it as untimely.

         See ECF No. 484. That motion likewise did not raise the ex post facto issue that the Court now addresses. See ECF Nos. 483 & 484. Mr. Calvert appealed, ECF No. 488, but then voluntarily dismissed his appeal, ECF No. 503.

         Mr. Calvert filed additional documents attacking his sentence, all of which were denied. His filings included a letter that this Court construed as a § 2241 petition, see ECF No. 517, as well as two motions for a sentence reduction under § 3582(c) and Guidelines Amendment 782, ECF Nos. 521 & 525. None of these additional documents raised the ex past facto violation at issue here.

         On October 22, 2015, the Court entered a Fifth Amended Judgment clarifying that the Court intended that Mr. Calvert receive credit for the time he spent in custody prior to sentencing in this federal matter as well as in the related state-court ...


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