Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lee v. United States

United States District Court, D. South Carolina, Florence Division

September 30, 2019

John Sherman Lee, Petitioner
v.
United States of America, Respondent

          ORDER

          Terry L. Wooten Senior United States District Judge

         This matter comes before the Court for consideration of the petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner John Sherman Lee. For the reasons stated below, the petition is granted in part and denied in part.

         I. Factual and Procedural History

         Petitioner was charged in a two-defendant, five-count superseding indictment with Hobbs Act robbery (Count 1), being a felon in possession of a firearm (Count 2), and using and carrying a firearm during a crime of violence (Count 4). ECF No. 32. In the middle of trial, he elected to plead guilty to all three counts, and on June 27, 2006, the Court sentenced him to a total of 312 months incarceration, consisting of 240 months on Count 1 and 312 months on Counts 2 and 4. ECF No. 100.

         Petitioner was classified as an armed career criminal under the Armed Career Criminal Act (ACCA), which imposes a mandatory minimum sentence of fifteen years imprisonment followed by five years of supervised release on a felon who possesses a firearm and who has three or more prior convictions for committing certain drug crimes or “violent felon[ies].” 18 U.S.C. § 924(e)(1).[1] The Presentence Investigation Report (PSR) classified the following offenses as ACCA predicates:

(1) Armed Robbery (North Carolina) (PSR ¶ 39 – Docket No. 77CRS28150);
(2) Armed Robbery (North Carolina) (PSR ¶ 39 – Docket No. 77CRS28416);
(3) Escape (South Carolina) (PSR ¶ 42);
(4) Assault and Battery of a High and Aggravated Nature (ABHAN) (South Carolina) (PSR ¶ 45);
(5) Larceny From a Person (North Carolina) (PSR ¶ 46).

         Petitioner also was classified as a career offender under § 4B1.1 of the Sentencing Guidelines based on the ABHAN and larceny convictions.[2] PSR ¶ 83.

         After judgment was entered, he filed a direct appeal, but the Fourth Circuit affirmed. United States v. Lee, 230 Fed.App’x 245 (4th Cir. 2007).

         In January 2007, Petitioner timely filed a pro se petition under 28 U.S.C. § 2255, which the Court dismissed on the merits after briefing. ECF Nos. 123, 137. He did not file a direct appeal.

         In June 2016, as required by 28 U.S.C. § 2244, Petitioner filed a motion in the Fourth Circuit requesting authorization to file a successive § 2255 petition to seek resentencing in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In re Lee, No. 16-9271 (4th Cir.), ECF No. 2. On June 24, 2016, the Fourth Circuit granted his motion. Id., ECF No. 8-2. His § 2255 petition was docketed in this Court that day. ECF No. 151.

         In his § 2255 petition, Petitioner seeks a full resentencing, arguing that his ACCA and career offender designations are invalid in light of Johnson and that his ยง 924(c) conviction should be vacated because Hobbs Act robbery is no longer ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.