United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the court is the defendant's Motion to Reconsider
Denial of CJA Counsel's Motion to Resentence [ECF No.
304]. The United States submitted a Response [ECF No. 306].
For the reasons stated herein, the Motion to Reconsider is
August 16, 2002, a jury found Edward Lee Lewis guilty of four
counts of mailing threatening communications in violation of
18 U.S.C. § 876; one count of mailing threatening
communications to the President of the United States in
violation of 18 U.S.C. § 871; and one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
November 12, 2002, the court sentenced Mr. Lewis for these
convictions. Based on the three convictions for
“violent felonies” in Mr. Lewis's criminal
history, he was classified as an armed career
criminal under 18 U.S.C. § 924(e), the Armed Career
Criminal Act (the “ACCA”). Thus, Mr. Lewis was
subject to a mandatory minimum sentence of 180 months'
imprisonment, and a maximum of life, for his conviction under
18 U.S.C. § 922(g)(1). See 18 U.S.C. §
924(e)(1). Accordingly, this conviction was classified as a
Class A felony, see 18 U.S.C. § 3559(a)(1), and
Mr. Lewis was subject to a sentence of up to five years'
supervised release, see § 3583(b)(1).
Ultimately, this court sentenced Mr. Lewis to 192 months'
incarceration, followed by three years' supervised
release. J. [ECF No. 88]. This sentence was affirmed on
appeal. United States v. Lewis, 75 F. App'x 164
(4th Cir. 2003).
the Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015) and Welch v. United
States, 136 S.Ct. 1257 (2016), the court issued a
Memorandum Opinion and Order finding that Mr. Lewis's
classification as an Armed Career Criminal was no longer
lawful,  and thus his sentence of 192 months'
imprisonment was unlawful. See Mem. Op. & Order
[ECF No. 299]. However, by this time, Mr. Lewis had already
served his term of imprisonment and been released from
prison. The court found that Mr. Lewis's sentence of
supervised release remained lawful and declined to alter it.
See Id. at 11, n.5. The court adjusted Mr.
Lewis's criminal history category and class of felony for
the benefit of their impact on any future proceedings.
See Id. at 11.
the entry of the court's Order, Mr. Lewis's CJA
counsel filed a Motion to Resentence asking the court to
resentence Mr. Lewis to no supervised release to compensate
Mr. Lewis for the excess time he spent in prison. Mot.
Resentence [ECF No. 301]. The court denied this motion,
citing the Supreme Court's decision in Johnson v.
United States, which plainly states that “[t]he
objectives of supervised release would be unfulfilled if
excess prison time were to offset and reduce terms of
supervised release.” 529 U.S. at 59; Order [ECF No.
the federal public defender, appointed to represent Mr. Lewis
in his pending revocation proceeding for violation of the
terms of his supervised release, filed this motion [ECF No.
304], asserting that the court is required to vacate Mr.
Lewis's sentence and resentence him. The court assumes
that the client, who was a fugitive at the time of filing,
authorized his counsel to bring this motion.
defendant argues that the court must vacate the original
judgment in its entirety and conduct a de novo resentencing
for the defendant. However, the language of § 2255 and
the case law interpreting it is clear: “A district
court need not actually vacate the original sentence if the
judgment has the ‘practical effect' of vacating the
original sentence.” United States v. Davis,
No. 17-4011, 2017 WL 3867817, at *2 (4th Cir. Sept. 5, 2017)
(quoting United States v. Hadden, 475 F.3d 652, 661
n.9 (4th Cir. 2007). Furthermore, the court is only required
to take one of “four distinct courses in
remedying a successful § 2255 petitioner's unlawful
sentence: (1) ‘discharge the prisoner, ' (2)
‘grant [the prisoner] a new trial, ' (3)
‘resentence [the prisoner], ' or ‘correct the
[prisoner's] sentence.” Hadden, 475 F.3d
at 667. This language “confers a ‘broad and
flexible' power to the district courts ‘to fashion
an appropriate remedy.'” United States v.
Hillary, 106 F.3d 1170, 1171 (4th Cir. 1997) (quoting
United States v. Garcia, 956 F.2d 41, 45 (4th Cir.
1992)). Thus, despite the defendant's argument to the
contrary, the court is not required to resentence the
the specific facts and the posture of this case, I find that
the appropriate means by which to grant relief to Mr. Lewis
is for the court to correct Mr. Lewis's
sentence. Mr. Lewis has, unfortunately, already served the
entire period of imprisonment on his original unlawful
sentence. It is clear that this period of incarceration was
greater than any sentence that would now be imposed by the
court. Therefore, it is unnecessary to conduct a de novo
resentencing to determine a numerical sentence of
imprisonment, and it is appropriate to correct the
defendant's sentence by amending the term of imprisonment
to “time served.” The defendant also asks the
court to impose no term of supervised release, as none was
originally required and “[g]iven the amount of
additional time Lewis has served in prison” as a result
of the unlawful term of imprisonment. Mem. Support Mot.
Recon. 7 [ECF No. 305]. The court finds such reasoning
unpersuasive. As articulated by the Supreme Court,
“[t]he objectives of supervised release would be
unfulfilled if excess prison time were to offset supervised
release.” Johnson, 529 U.S. at 59. The court
is well aware that it has discretion to amend Mr. Lewis's
sentence of supervised release. However, it has chosen not to
do so. “Congress intended supervised release to assist
individuals in their transition to community life.”
Id. Considering the difficulty Mr. Lewis has had in
his transition, it is clear that the court made the right
the court ORDERS that the defendant's
original term of imprisonment is amended to a term of
“time served.” The term
of supervised release will remain as is-three years under the
same conditions previously ordered. The defendant's
motion [ECF No. 304] is DENIED.
court DIRECTS the Clerk to send a copy of
this Order to the defendant and counsel, the United States
Attorney, the United States ...