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Ezell v. United States

United States District Court, W.D. Washington, Seattle

August 8, 2017

TERRY LAMELL EZELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Petitioner's second or successive 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. Dkt. #1. Petitioner Terry Lamell Ezell challenges the 262-month sentence imposed on him by this Court following his conviction for possession of cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Id. at 4. Petitioner challenges his sentence on the basis that the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), applies retroactively to his case and requires that the Court resentence him. This is Mr. Ezell's fourth § 2255 motion; all of his prior § 2255 motions were denied. Id. at 5-7. After full consideration of the record, and for the reasons set forth below, the Court DENIES Mr. Ezell's § 2255 motion.

         II. BACKGROUND

         Mr. Ezell was charged in his underlying criminal case with possession of crack cocaine with Intent to Distribute, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B)(iii) (Count 1); carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §924(c) (Count 2); and being a felon in possession of a firearm as an armed career criminal, in violation of 18 U.S.C. §§922(g)(1) and 924(e) (Count 3). Case No. 2:05-cr-00273-RSM, Dkt. #79. On March 10, 2008, following a bench trial, the Court acquitted Mr. Ezell of Count 2, but convicted him of the remaining charges. Case No. 2:05-cr-00273-RSM, Dkts. #108 and #112.

         Mr. Ezell's sentencing took place on July 11, 2008. Case No. 2:05-cr-00273-RSM, Dkt. #118. Given the amount of crack cocaine at issue in Count 1, Ezell faced a 5-year mandatory minimum sentence, and a maximum sentence of 40 years. 21 U.S.C. §841(b)(1)(B)(iii) (2005). Mr. Ezell's felon-in-possession charge in Count 3 normally carries a 10-year maximum sentence. 18 U.S.C. §924(a)(2). However, if subject to sentencing under ACCA, Ezell faced a 15-year mandatory minimum, and a maximum sentence of life. 18 U.S.C. §924(e)(1).

         In its sentencing memoranda the government urged that Mr. Ezell's criminal history rendered him a career offender under the Guidelines, given his conviction of a controlled substance offense in Count 1. Case No. 2:05-cr-00273-RSM, Dkts. #114 and #116. The government also argued Mr. Ezell was subject to sentencing under the ACCA for his felon-in-possession conviction in Count 3. Id. To qualify as a career offender, a defendant must have two prior convictions for a “crime of violence or a controlled substance offense, ” USSG §4B1.1(a), while a defendant needs three prior convictions for “a violent felony or a serious drug offense” to qualify for sentencing under ACCA. 18 U.S.C. §922(e)(1).

         The government identified four prior Washington State convictions that met these definitions:

1) 1994 conviction for Assault in the Second Degree and Burglary in the First Degree;
2) 1991 conviction for Assault in the Second Degree;
3) 1987 conviction for Burglary in the Second Degree, involving a personal residence;
4) 1987 conviction for Burglary in the Second Degree, involving a church.

Case No. 2:05-cr-00273-RSM, Dkts. #114 and #116. Mr. Ezell's 1994 second-degree assault conviction was for assault with a deadly weapon, in violation of RCW 9A.36.021(1)(c), and his 1991 second-degree assault conviction was for an intentional assault resulting in substantial bodily harm, in violation of RCW 9A.36.021(1)(a). The government argued that Mr. Ezell's assault convictions were categorically violent felonies/crimes of violence under the elements clause of ACCA and USSG §4B1.2(a)(1), and also argued, in the alternative, that these convictions were qualifying predicates under ACCA's and Former USSG §4B1.2(a)(2)'s residual clauses. Case No. 2:05-cr-00273-RSM, Dkt. #114 at 4-5, 8-9, 13-14. Regarding Mr. Ezell's burglary convictions, the government argued the Shepard documents showed these convictions matched ACCA's generic definition of burglary under the modified categorical approach, and also argued that they were violent felonies under ACCA's residual clause. Id. at 5-8, 9-12. The government further argued that the 1994 first-degree burglary conviction and the 1987 second-degree burglary conviction involving a residence matched Former USSG §4B1.2(a)(2)'s generic crime of burglary of a dwelling under the modified categorical approach, and the 1987 second-degree burglary conviction involving a church was a crime of violence based on the residual clause. Id. at 13-14.

         At sentencing, the Court determined that Ezell should be sentenced under the ACCA and as a career offender. Case No. 2:05-cr-00273-RSM, Dkts. #130 at 33. The Court determined Ezell's second-degree assault convictions were categorically crimes of violence/violent felonies, id. at 29, and, after reviewing the Shepard documents, the Court found Ezell's second-degree burglary convictions qualified under the modified categorical approach, id. at 29-33. While the Court made these rulings “for the reasons basically set out in the probation officer's presentence report, and the government's memorandum, ” id. at 33, the Court did not explicitly rely on the residual clause, nor did the Court make any findings about Ezell's first-degree burglary conviction, see Id. at 29-33.

         Adopting the Probation Office's calculation, the Court set Mr. Ezell's total offense level at 34 and placed him in Criminal History Category VI, resulting in an advisory Guidelines range of 262 to 327 months. Id. at 33. The Court imposed a 262-month prison term, followed by 5 years of supervised release. Id. at 36-38. A little over two weeks later the Court entered an amended judgment ...


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