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United States v. Lasich

United States District Court, D. Oregon

December 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL GEORGE LASICH, Defendant.

          BILLY J. WILLIAMS United States Attorney THOMAS H. EDMONDS Assistant United States Attorney Attorneys for Plaintiff

          LISA C. HAY Federal Public Defender STEPHEN R. SADY Chief Deputy Federal Public Defender ELIZABETH G. DAILY Assistant Federal Public Defender Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.

         This matter comes before the Court on Defendant Michael George Lasich's Motion (#32) to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons that follow, the Court DENIES in part and STAYS this matter pending a decision by the Supreme Court in Lynch v. Dimaya, 137 S.Ct. 31 (2016).

         BACKGROUND

         On September 6, 2002, Defendant was charged in a Superseding Indictment with two counts of Interference with Commerce by Threat or Violence (Hobbs Act robbery) in violation of 18 U.S.C. § 924(c), two counts of Brandishing a Firearm during a Crime of Violence in violation of 18 U.S.C. § 922(g), and one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g).

         On March 20, 2003, Defendant pled guilty to the two Hobbs Act robbery counts and to the one count of Brandishing a Firearm.

         On May 29, 2003, Senior District Judge James Redden held a sentencing hearing, sentenced Defendant to concurrent 121-month terms of imprisonment on the two Hobbs Act robbery counts, imposed a mandatory consecutive sentence of 84 months on the count of Brandishing a Firearm, and sentenced Defendant to three years of supervised release.

         On June 5, 2003, the Court entered a Judgment. Defendant did not appeal his conviction.

         On June 25, 2016, Defendant filed a Motion to Vacate or Correct Sentence Pursuant to 28 U.S.C. § 2255 in which he asserts his sentence should be vacated. Specifically, Defendant asserts his sentence was imposed in violation of the Constitution or laws of the United States because Hobbs Act robbery is not a crime of violence that can sustain a conviction for violation of 18 U.S.C. § 924(c) after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) .

         On June 9, 2017, Defendant was released from prison and began serving his three-year term of supervised release.

         On October 23, 2017, Defendant's Motion to Vacate was fully briefed, and the Court took Defendant's Motion under advisement.

         DISCUSSION

         Defendant moves to modify or to set aside his sentences on the ground that Hobbs Act robbery does not qualify as a crime of violence under 18 U.S.C. § 924(c) after the Supreme Court's decision in Johnson. Alternatively, Defendant asserts the Supreme Court's decision in Dean v. United States, 137 S.Ct. 1170 (2017), provides a separate grounds for resentencing based on the correct interpretation of the sentencing provisions in 18 U.S.C. §§ 924(c), 3584(a), and 3553(a).

         The government asserts Defendant was not sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and, therefore, Johnson does not apply to this matter. The government also asserts Dean is not retroactively applicable on ...


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