Marcelone Hughes v. United States

BACKGROUND

Hughes was indicted in October 2002 for brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). In July 2003, a jury convicted him of that offense. The statutory penalty for brandishing a firearm during a crime of violence is a term of imprisonment of not less than seven years. Id. § 924(c)(1)(A)(ii). The mandatory minimum sentence increases to ten years if a semi-automatic assault weapon is used. Id. § 924(c)(1)(B)(i).

At Hughes’s March 2004 sentencing hearing, the district court, over an objection from Hughes’s counsel, made a finding that Hughes brandished a semi-automatic assault weapon. The court imposed the ten-year mandatory minimum sentence. In doing so, the district court relied on Harris v. United States, 536 U.S. 545 (2002), which allowed judges to make factual findings at the time of sentencing based on a preponderance of the evidence.

Hughes appealed the district court’s finding and sentence, but our court affirmed the district court’s ruling, citing Harris. United States v. Hughes, 178 Fed. App’x. 703, 705–06 (9th Cir. 2006). Hughes then filed a motion under 28 U.S.C. § 2255 seeking to collaterally attack the judgment.…