United States District Court, N.D. West Virginia
J. Kornbrath W.Va. Bar #7330 Federal Public Defender FEDERAL
PUBLIC DEFENDER OFFICE COUNSEL FOR PETITIONER
Christopher J. Prezioso W.Va. Bar #9384 Assistant United
States Attorney UNITED STATES ATTORNEY'S OFFICE COUNSEL
MEMORANDUM OPINION AND ORDER
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
April 26, 2019, Petitioner, by counsel, Brian J. Kornbrath,
Federal Public Defender, filed an unopposed Motion for
Summary Judgment, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, requesting that this Court enter summary
judgment in this matter by granting the relief requested by
Petitioner in the pending Emergency Application for Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (§ 2241
Petition)(ECF No. 1).
March 8, 2001, the United States District Court for the
District of Maryland, in Criminal No. CCB-00-0296 (D. Md.),
sentenced Petitioner Jermaine Faison to the term of 188
months imprisonment based on his conviction for the felony
offense of Bank Robbery (Count 1). The District Court did so
upon finding that Petitioner was a career offender under the
then-mandatory United States Sentencing Guidelines. The
District Court's application of the career offender
enhancement subjected Petitioner to a mandatory guidelines
range of 188 to 235 months imprisonment (corresponding to an
offense level 31 and a criminal history category VI) for
Count 1. Petitioner was also sentenced to the term of 84
months imprisonment based on his conviction for Use of a
Firearm (Count 3), to be run consecutively to his sentence
for Count 1. Petitioner's guideline range for Count 3 was
a consecutive 84 months.
was sentenced to a period of 5 years supervised release for
Count 1 and a period of 3 years supervised release for Count
3. The periods of supervised release were ordered to be run
concurrent upon Petitioner's release from imprisonment.
Finally, Petitioner was ordered to pay mandatory restitution
and a special assessment fee for both counts. The District
Court did not order Petitioner to pay a fine.
District Court classified Petitioner as a career offender
based on a finding that Petitioner had two prior convictions
that qualified as "crimes of violence" under
U.S.S.G. § 4B1.2 (2001). On January 30, 2019, pursuant
to United States v. Wheeler, 886 F.3d 415 (4th Cir.
2018), Petitioner filed the pending § 2241 Petition
seeking to vacate his mandatory career offender sentence by
arguing that his prior conviction for Maryland Second Degree
Assault should not be considered a "crime of
violence" for career offender enhancement purposes.
Petitioner argued that, in United States v. Royal,
731 F.3d 333 (2013), the Fourth Circuit held that under the
elements-driven categorical approach of Descamps v.
United States, 570 U.S. 245 (2013), Maryland Second
Degree Assault does not qualify as a "violent
felony" under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B). Petitioner further noted that the
elements-driven categorical approach has been applied equally
to the career offender guideline provision containing the
definition of "crime of violence" applied to
Petitioner's sentence. Without the career offender
enhancement, Petitioner's guideline range would have been
78 months to 97 months imprisonment for Count 1
(corresponding to an offense level 26 and a criminal history
category III) and 84 months imprisonment for Count 3.
April 26, 2019, an unopposed Motion for Summary Judgment was
filed by Petitioner requesting that Petitioner's §
2241 Petition be granted. As set forth in the Motion for
Summary Judgment, Respondent did not oppose the motion based
on the specific facts and legal circumstances surrounding
Petitioner's pre-Booker sentence. Further, the
Motion for Summary Judgment noted that Respondent's
decision to not oppose the relief requested by Petitioner
should not be construed as a waiver to any valid defenses
that may be asserted in any other case. Based on the specific
facts of this particular case, the parties now agree that
Petitioner should no longer be deemed a career offender and
the Court should impose a sentence of time served.
good cause shown, Petitioner's unopposed Motion for
Summary Judgment is GRANTED and
Petitioner's sentence shall be modified to a sentence of
TIME SERVED. All other aspects of the
judgment order in United States v. Jermaine Faison,
CCB-00-0296 (D. Md.) shall remain in full force and effect,
including, but not limited to, Petitioner's original
conditions of supervised release and restitution obligations.
reasons stated above, the Court hereby
ORDERS as follows:
1. Petitioner Jermaine Faison's Motion for Summary
Judgment is GRANTED;
2. Petitioner Jermaine Faison's sentence is
MODIFIED to a sentence of TIME SERVED, to be
followed by the original conditions of supervised release and
restitution reflected in Petitioner's initial judgment.
Further, any additional aspects of . the judgment in
United States v. Jermaine Faison, CCB-00-0296 (D.
Md.) shall remain in full force and effect;
3. Petitioner's Jermaine Faison's release from
imprisonment to supervised release shall be DELAYED
TEN (10) DAYS from the entry of this Memorandum
Opinion and Order. Petitioner's release from imprisonment
to supervised release is being DELAYED in
order to notify victims and witnesses of the release of
Petitioner as required by 18 U.S.C. § 3771; to notify
law enforcement officials of the release of a violent
offender pursuant to 18 U.S.C. §§ 4042(b) and (c);
to permit adequate time to collect DNA samples pursuant to 34
U.S.C. § 40702; and for any other lawful prerelease
actions required prior to the release of Petitioner; and
4. Petitioner's supervision is
TRANSFERRED to the Probation Office for the
United States District Court ...