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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

JOSEPH WHITING, CASE NO: 06-20465 

Petitioner, HON. NANCY G. EDMUNDS 

vs. 

UNITED STATES OF AMERICA, 

Respondent. 

____________________________/ 

GOVERNMENT’S RESPONSE TO DEFENDANT’S AMENDED 

MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR 

CORRECT SENTENCE

I. INTRODUCTION

The defendant, Joseph Whiting (hereinafter “defendant”), filed his initial motion 

pursuant 28 U.S.C. § 2255 on September 30, 2014. The government filed its response on 

January 20, 2015. The defendant filed a motion to amend his initial filing by adding one 

additional issue on July 27, 2015. The Government replies to this additional issue below. 

II. STATEMENT OF FACTS AND PROCEDURE 

After a two-month long trial, the defendant was convicted of Count One (RICO), 

Count Two (Conspiracy to commit RICO), Count Thirteen (Conspiracy to Commit 

Murder in Aid of Racketeering), and Count Forty-Seven (Receipt and Possession of 

Stolen Vehicle in Interstate Commerce). The Court sentenced the defendant to 420 

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months imprisonment on Counts One, Two, and Thirteen and ten years on Count FortySeven, all to be served consecutively. 

III. LAW AND ARGUMENT

In order to prevail upon a § 2255 motion, “the movant must allege as a basis for 

relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the 

statutory limits; or (3) an error of fact or law that was so fundamental as to render the 

entire proceeding invalid.’” Mallett v. United States, 334 F.3d 491, 496-497 (6th Cir. 2003) 

(citing Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). Relief is warranted 

“only where a petitioner has shown ‘a fundamental defect which inherently results in a 

complete miscarriage of justice.’” Griffin 330 F.3d at 736 (citing Davis v. United States, 417 

U.S. 333, 346 (1974)). 

Defendant objects in his amended motion that it was error that he was sentenced 

to 420 months on Count Thirteen since the section of the statute he was convicted of 

(section 1959 (a)(5) – murder conspiracy) has a statutory maximum of ten years. The 

defendant is correct. 

ARGUMENT 

 18 U.S.C. § 1959(a)(5) carries a ten year statutory maximum sentence. As such, the 

sentence of 420 months on that count exceeds the statutory maximum. Consequently, 

the defendant must be re-sentenced on that count. Thus, the government requests that 

the Court order a sentencing rehearing for the limited and sole purpose to address this 

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error in the sentence for Count Thirteen and that an amended judgment be entered after 

said rehearing. 

CONCLUSION

Consequently, the Government respectfully requests that Defendant’s Motion 

under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence as to the first five 

grounds raised in the initial motion be denied and a limited sentencing rehearing be 

ordered for the sole purpose of correcting the sentence on Count Thirteen. 

Respectfully submitted, 

BARBARA L. MCQUADE 

United States Attorney 

 /s/ Christopher Graveline 

CHRISTOPHER GRAVELINE 

Assistant U.S. Attorney 

211 W. Fort, Suite 2532 

Detroit, MI 48226 

Telephone: (313) 226-9155 

Date: August 21, 2015 christopher.graveline2@usdoj.gov

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 21, 2015, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF, for uploading and service by 

electronic notice to counsel and parties authorized to receive electronically Notices of 

Electronic Filing. 

A copy of this response will be mailed, via first class mail, to: 

Joseph Whiting 

Federal Correctional Institution - Memphis 

P.O. Box 34550 

Memphis, TN 38184 

/s/ Christopher Graveline 

CHRISTOPHER GRAVELINE 

Assistant U.S. Attorney 

211 W. Fort Street 

Detroit, MI 48226 

Telephone: (313) 226-9155 

Date: August 21, 2015 christopher.graveline2@usdoj.gov

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