United States District Court, W.D. Virginia, Big Stone Gap Division
Donald Ray Clark, Pro Se.
OPINION AND ORDER
JAMES P. JONES, District Judge.
Donald Ray Clark, a federal inmate sentenced by this court in 2003, has filed a pro se pleading entitled "Motion for Sentence Modification." For the reasons that follow, the motion will be denied.
Clark was convicted by a jury of firearms offenses and sentenced to a total of 260 months incarceration. His direct appeal was unsuccessful. United States v. Clark, 93 F.App'x 529 (4th Cir.) (unpublished), cert. denied, 543 U.S. 880 (2004). Post-conviction relief under 28 U.S.C. § 2255 was later denied. Clark v. United States, No. 7:05CV00595, 2005 WL 2660422 (W.D. Va. Oct. 19, 2005), appeal dismissed, 180 F.App'x 467 (4th Cir. 2006) (unpublished).
Clark bases his current motion on 18 U.S.C. § 3582(c)(2), but that statute permits modification of a sentence only when the applicable guideline sentencing range is later lowered by the Sentencing Commission. That is not Clark's claim. Instead, he contends that later decisions of the Supreme Court have cast doubt on the determination at his sentencing that he was an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). In particular, he argues that his 1982 state conviction for statutory burglary of an unoccupied business can no longer be considered a predicate conviction under the ACCA because (1) it was not a violent felony and (2) his status as an armed career criminal was not determined by a jury.
Even if the court had the power to now modify Clark's sentence, which it does not,  his contentions on their merits are incorrect. Burglary is expressly named by the statute as a predicate offense under the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and is defined generically as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.'" James v. United States, 550 U.S. 192, 197 (2007) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). There was thus no need for the court to consider whether the crime involved actual violence.
In addition, it is not required that a jury determine whether a defendant has a predicate conviction under the ACCA, since the fact of a prior conviction is an exception to the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). See Alleyne v. United States, 133 S.Ct. 2151, 2160 n.1 ...