In re: Embry, No. 16-5447 (6th Cir. 2016)
Annotate this CaseIn 2000, Embry pled guilty to three counts of bank robbery, three counts of being a felon in possession of a firearm, and one count of using a firearm in relation to a crime of violence. In calculating his sentencing range, the court treated him as a career offender based on prior convictions for robbery and wanton endangerment, U.S.S.G. 4B1.1. In 2016, he moved to vacate his sentence, 28 U.S.C. 2244(b)(3). The court of appeals may authorize a successive motion to vacate a sentence or conviction if the inmate “makes a prima facie showing” that his proposed claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Embry relied on the Supreme Court’s 2015 Johnson decision, later made retroactive, which voided for vagueness the residual clause of the Armed Career Criminal Act. Johnson was sentenced under an identically worded clause of the Sentencing Guidelines. The Sixth Circuit granted the motion and transferred the case to the district court to be held in abeyance, pending the Supreme Court’s decision (next term) in Beckles v. United States. The court noted “respectable constitutional arguments that the vagueness doctrine does not apply to the advisory Guidelines.”
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