United States District Court, W.D. Virginia, Charlottesville Division
NORMAN K. MOON UNITED STATES DISTRICT JUDGE.
Defendant, represented by appointed counsel, has filed-pursuant to 28 U.S.C. § 2255 and Johnson v. United States, 135 S.Ct. 2551 (2015)-a motion to vacate his sentence. (Dkt. 58). He argues that Johnson entitles him to a reduced sentence, which when recalculated would result in his release from custody. The Government disagrees and filed a motion to dismiss.
The crux of Defendant’s argument is that two of his prior convictions-one for robbery and another for rape-do not fit within the “force clause” of the Armed Career Criminal Act (“ACCA”) based on 2010 precedent and, in light of the 2015 Johnson decision, cannot be shoehorned into the ACCA’s “residual clause.” If correct, those contentions would result in him possessing fewer than the number of qualifying convictions needed to receive an enhanced sentence under the ACCA.
Defendant’s motion, however, must be denied. Although the Court agrees that intervening Supreme Court precedent from 2010 changed the test governing the ACCA’s force clause, robbery in Virginia still classifies as a “violent felony, ” even under the revised formulation. Consequently, Defendant still has the requisite number of convictions justifying his ACCA-enhanced sentence.
On November 13, 2001, Defendant was charged with two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). (Dkt. 1). The Government subsequently filed a “notice of additional penalties pursuant to Title 18 United States Code 924(e), ” informing Defendant that, if convicted, it intended to seek a sentencing enhancement imposing a 15-year minimum term based on his prior felony convictions of (1) rape, (2) robbery, (3) possession of cocaine with intent to distribute, (4) possession of cocaine, and (5) distribution of cocaine. (Dkt. 11).
After a one-day jury trial in April 2002, Defendant was found guilty on Count I and not guilty on Count II. (Dkt. 24). According to the probation office’s presentence report (“PSR”), Defendant had four prior convictions that were qualifying felonies under the ACCA: (1) rape; (2) robbery; (3) possession of cocaine with intent to distribute; and (4) distribution of cocaine. (PSR ¶¶ 21-22, 28, 31). The PSR thus concluded, and the parties apparently agree for purposes of this motion, that Defendant’s 1994 conviction for mere possession of cocaine is not an ACCA-qualifying felony. (See PSR ¶ 30). Only the robbery and rape convictions are in dispute now.
Ultimately, Defendant was sentenced to 275 months imprisonment. (Dkts. 40, 43). On appeal, the Fourth Circuit in 2003 affirmed Defendant’s conviction and sentence in an unpublished opinion. (Dkt. 53). Defendant’s instant motion was filed on February 10, 2016, within a year of the Supreme Court’s 2015 Johnson decision. The Government, besides asserting that the motion is untimely, argues that the robbery conviction remains a qualifying ACCA felony and cursorily contends that the same is true of his conviction for rape under the Uniform Code of Military Justice. To those arguments the Court now turns.
I. The ACCA, Johnson I, and Johnson II.
Under the ACCA, mandatory minimum 15-year sentences apply to certain individuals convicted of firearm possession who have at least three prior “violent felony” or “serious drug offense” convictions. 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential ...