Opinion
Case No. 10-14121-CIV-GRAHAM/WHITE, 00-14057-CR-GRAHAM/WHITE.
December 6, 2010
ORDER
THIS CAUSE came before the Court upon the Report of the Magistrate Judge regarding Movant Bennie Wiley's Motion to Vacate Sentence [D.E. 1], pursuant to 28 U.S.C. § 2255.
Movant Wiley filed his Motion to Vacate asserting that his due process rights were violated because his prior state court conviction for battery on a law enforcement officer is no longer considered a crime of violence, in light of Johnson v. United States, 130 S.Ct. 1265, 176 L.Ed.2d (March 2, 2010) and therefore cannot be used as a predicate offense to enhance his sentence as a career offender [D.E. 1]. The case was referred to the Honorable United States Magistrate Judge Patrick A. White by the Clerk's Order [D.E. 4]. The Magistrate Judge recommended that Movant's motion be denied on the merits. Specifically, because Movant was also convicted of resisting an officer with violence which qualifies as a predicate offense for purposes of determining his career offender. This conviction, together with the prior sale of cocaine conviction, constitute two prior qualifying offenses to support the enhanced sentence. As such, Movant's status as a career offender should not be disturbed.
THE COURT has conducted a de novo review of the file and is otherwise fully advised in the premises.
The Magistrate Judge issued a Report recommending that the Motion to Vacate be denied on its merits [D.E. 14]. Movant filed no Objections to the Magistrate Judge's Report.
Accordingly, it is hereby
ORDERED AND ADJUDGED that United States Magistrate Judge White's Report [D.E. 14] is RATIFIED, AFFIRMED and APPROVED in its entirety. It is further
ORDERED AND ADJUDGED that Movant's Amended Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 [D.E. 1] is DENIED. It is further
ORDERED AND ADJUDGED that this case is CLOSED and any pending motions are denied as MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of December, 2010.