United States District Court, D. Maine
ORDER ON MOTION TO SUPPLEMENT/ AMENDED
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
action, Petitioner Xavier Watson moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 276.) Petitioner also filed a motion to
supplement. (Motion to Supplement, ECF No. 279.)
2017, following a guilty plea, Petitioner was convicted of
Hobbs Act robbery and aiding and abetting the brandishing of
a firearm in furtherance of a crime of violence. (Judgment,
ECF No. 177 at 1.) Pursuant to an amended judgment,
Petitioner was sentenced to a total prison term of 115
months. (Amended Judgment, ECF No. 264 at 2.) Petitioner did
not appeal from the conviction or the sentence.
contends, pursuant to Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015), and Sessions v.
Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018), that his
conviction should be vacated; he also asserts a related claim
of ineffective assistance. (Motion at 2-3.)
the motion to supplement. Following a review of
Petitioner's section 2255 motion, the Government's
request for dismissal, and the record, I recommend the Court
grant the Government's request to dismiss
Petitioner's section 2255 motion.
Factual Background and Procedural History
2017, Petitioner was convicted of Hobbs Act robbery, 18
U.S.C. § 1951(a) (Count 2); and aiding and abetting the
brandishing of a firearm in furtherance of a crime of
violence, 18 U.S.C. § 924(c) (Count 3); the Court
sentenced Petitioner to prison terms of 37 months on Count 2
and to 84 months on Count 3, to be served consecutively, for
a total term of 121 months. (Judgment at 1-2.)
February 2018, the Court amended the sentence on Count 3 from
84 months to 78 months (still to be served consecutively);
after the amendment, the total prison term was 115 months.
(Id.; Amended Judgment at 1-2.) Petitioner did not
appeal from the conviction or the sentence.
filed his motion on May 14, 2018, which was within the
one-year limitation period under section 2255(f)(1). (Motion
Johnson, the statute at issue was the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (ACCA), which imposes a
15-year mandatory minimum prison term when a defendant is
convicted of a violation of 18 U.S.C. § 922(g) and has
three previous convictions, committed on separate occasions,
“for a violent felony or a serious drug offense, or
both.” 135 S.Ct. at 2555-57. Section 924(e)(2)(B)
defines the term “violent felony” and provides:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, . .
(i) has as an element the use, attempted
use, or threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of ...