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Hardin v. United States

United States District Court, N.D. Indiana, South Bend Division

December 2, 2016

LARRY HARDIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE

         Petitioner Larry Hardin pleaded guilty to possessing with intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), (b), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). This matter is before the court on Mr. Hardin's motion to vacate and correct his sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr. Hardin's motion.

         I. Background

         Mr. Hardin pleaded guilty to possessing with intent to distribute more than five grams of cocaine base, 21 U.S.C § 841(a)(1), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). He had two relevant prior felony convictions, one for dealing in a sawed-off shotgun and another for resisting law enforcement. The court considered both to be “crimes of violence” under the Federal Sentencing Guidelines. U.S.S.G. § 4B1.2. Because of the prior convictions, the court considered Mr. Hardin a “career offender, ” enhancing his base offense level to 34. U.S.S.G. § 4B1.1. With a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, his final adjusted offense level was 31. The guidelines recommended a sentence of 188 to 235 months. U.S.S.G. § 5A. The court sentenced him to 188 months for the drug possession and 120 months for the firearm possession, to be served concurrently.

         As part of his plea agreement, Mr. Hardin agreed to the following waiver:

I expressly waive my right to appeal or to contest my conviction and my sentence or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742, or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255[.]

Pet. to Enter a Plea of Guilty, ¶ 9(e) (emphasis added).

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year mandatory minimum sentence for a defendant who committed three prior “violent felonies.” The statute defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known as the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the “residual clause”];

18 U.S.C. § 924(e)(2)(B). Johnson held that the residual clause is unconstitutionally vague under the Due Process Clause, U.S. Const. amend. V. Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Mr. Hardin wasn't sentenced under the residual clause of the definition of “violent felony” in the ACCA, but under identical language in § 4B1.2 of the guidelines defining “crime of violence.” Mr. Hardin argues that neither dealing in a sawed-off shotgun nor resisting law enforcement is a “crime of violence” under § 4B1.2 because each isn't a “crime of violence” under the elements clause, § 4B1.2(a)(1), or the enumerated offenses clause, § 4B1.2(a)(2), and the residual clause, § 4B1.2(a)(2), is unconstitutional under Johnson.[1] As a result, he says he shouldn't have been subject to ยง 4B1.1's ...


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