United States District Court, D. Maryland
PETER J. MESSITTE, District Judge.
Daniel McRae has filed a Motion to Correct, Vacate, or Set Aside a Sentence Pursuant to 28 U.S.C. § 2255. Having considered McRae's Motion and the Government's Response thereto, the Court DENIES his Motion.
On March 22, 2010, following a Grand Jury indictment, McRae was charged with one count of bank robbery in violation of 18 U.S.C. § 2113(a). On April 26, 2012, he pleaded guilty to the charge and waived his right to appeal any sentence less than 188 months. This Court conducted a careful plea colloquy and concluded that McRae's plea was knowing and voluntary.
McRae's Presentence Report ("PSR") designated him as a career offender because his criminal history included at least two felony crimes of violence: (1) Robbery With a Deadly Weapon (Circuit Court for Prince George's County, No. CT001931X); (2) Second Degree Assault (Circuit Court for Montgomery County, No. 91851C); and (3) Second Degree Burglary (Circuit Court for Montgomery County, No. 105205C). Based on a total offense level of 29 (including a 10-level increase because of McRae's designation as a career offender) and a criminal history of category' VI, the custody range under the Sentencing Guidelines was 151 to 188 months of imprisonment.
McRae requested a number of continuances prior to sentencing in order to file and litigate Petitions for Writs of Error Coram Nobis in state court with respect to his three predicate convictions. In addition, the issue whether Second Degree Assault qualified as a felony crime of violence was under review in this Circuit.
Nonetheless, at McRae's sentencing hearing on January 7, 2013, all three predicate convictions remained in effect and all were classified as felony crimes of violence. McRae did not challenge the applicability of the career offender enhancement. Instead, he argued that a sentence of 120 months imprisonment was sufficient considering his personal history and characteristics. The Government, however, argued that a high-end sentence was appropriate because of McRae's extensive criminal history. This Court imposed a sentence in the middle of the guideline range of 169 months, reasoning, at least in part, that McRae's pattern of serious misconduct warranted a sentence that would ensure that, upon release, he would be too elderly to present a safety risk.
Thereafter, on June 10, 2013, the Circuit Court for Montgomery County entered an order vacating McRae's conviction for Second Degree Burglary.
Then, on June 24, 2013-despite having waived his right to appeal any sentence less than 188 months-McRae appealed his sentence in the present case, arguing that the sentence was unreasonable considering his age, history of trauma, and medical condition. Again, McRae did not challenge his designation as a career offender. On August 21, 2013, his appeal was dismissed on the ground that he had waived his right to appeal the sentence of 169 months.
On October 1, 2013, the Fourth Circuit issued its decision in United States v. Royal which, pursuant to Descamps v. United States, 133 S.Ct. 2276 (2013), held that Maryland's Second Degree Assault no longer qualified as a predicate felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (the "ACCA"). 731 F.3d 333 (4th Cir. 2013). On November 7, 2013, McRae filed the present Motion for Writ of Habeas Corpus under 28 U.S.C. § 2255, seeking to vacate his sentence of 169 months.
McRae argues that he should be resentenced because two developments affecting his designation as a career offender have changed since his sentencing: (1) his conviction for Second Degree Burglary was vacated by the Circuit Court for Montgomery County, and (2) Second Degree Assault is no longer a predicate offense for a career offender enhancement. See Royal, 731 F.3d at 341. He argues that these two developments collectively nullify his designation as a career offender and entitles him to resentencing. Moreover, he argues that he has not procedurally defaulted his claim because his current argument was futile before Descamps and Royal, both of which were decided after he was sentenced. He goes on: Even if this Court finds that the misapplication of the career offender enhancement should have been raised at sentencing, or on appeal, his prior counsel's failure to raise the issue amounted to a constitutional failure to render effective assistance and excuses his procedural default.
The Government argues that McRae is not entitled to relief because (1) he did not challenge his career offender designation at sentencing or on direct appeal and, therefore, procedurally defaulted his claim, and (2) guideline errors, including those newly-recognized under ...