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United States v. Winston

United States District Court, W.D. Virginia, Charlottesville Division

July 21, 2016

United States of America,
v.
Robert McKinley Winston Defendant.

          MEMORANDUM OPINION

          Norman K. Moon Judge

         This case is before the Court on a habeas petition based on Johnson v. United States, 135 S.Ct. 2551 (2015). (Dkt. 58). Specifically, Defendant argues he no longer qualifies for a mandatory sentencing enhancement because his prior convictions for robbery under Virginia law and rape under military law are not “violent felonies” within the meaning of the Armed Career Criminal Act.

         The Court previously denied the petition in an opinion and order but granted a certificate of appealability. (Dkt. 65, available at 2016 WL 2757451 (W.D. Va. May 11, 2016); dkt. 66 (order)). Before the judgment became final, the Fourth Circuit published United States v. Gardner, No. 14-4533, ___ F.3d ___, 2016 WL 2893881 (4th Cir. May 18, 2016), which held robbery under North Carolina law was not a violent felony. Defendant moved for reconsideration. (Dkt. 68). The Court vacated its opinion to assure it retained jurisdiction, avoid the possibility of prejudice to Defendant, and permit time for supplemental briefing. (Dkt. 69). The motions are now ripe.

         The Court concludes that the reasoning of its May 11th opinion remains sound even after Gardner. Specifically, Virginia law-even intermediate appellate authority relied on by Defendant-requires that violence be used to commit a robbery, and therefore a Virginia robbery conviction qualifies as an ACCA predicate felony.

         BACKGROUND AND PRELIMINARY LEGAL ISSUES

         The Court’s May 11, 2016 opinion provided the background of this case, summarized the Supreme Court’s decisions in Johnson v. United States, 559 U.S. 133 (2010) (“Johnson I”) and Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), and explained why the Government’s statute of limitations argument fails. (Dkt. 65 at 2-6). The Court expressly adopts and incorporates by reference those discussions.

         ANALYSIS

         I. The Crime of Robbery in Virginia

         A. The Fourth Circuit’s Decision in Presley Is No Longer Good Law.

         Likewise, the Court already explained in detail why United States v. Presley, 52 F.3d 64 (4th Cir. 1995)-which held that Virginia robbery was a violent felony-is no longer good law in light of Johnson I. (Dkt. 65 at 7-8). The Court thus incorporates by reference that discussion as well.

         In supplemental briefing ordered to address Gardner, the Government reasserted its position that Presley remains good law, as ostensibly stated by United States v. McNeal, 818 F.3d 141 (4th Cir. 2016), a case holding that federal bank robbery is a violent felony.

         First, the Government suggests the Court “may have been unaware” of McNeal. (Dkt. 73 at 2 n.1). The text of the May 11th opinion disproves this assertion. (Dkt. 65 at 6 n.2 (citing, inter alia, McNeal)).

         Second, McNeal applied the lenient “plain error” standard of review (rather than de novo) because of waiver in the trial court, and it involved a different crime than in Presley: federal bank robbery, as opposed to Virginia common law robbery. McNeal, 818 F.3d at 151.

         Third and relatedly, McNeal recognized that Presley “addressed a state crime, rather than a federal offense, and a State is entitled to define its crimes as it sees fit.” Id. at 153. Both McNeal and Gardner reaffirm that States are the final arbiters of their laws. That principle cuts in favor of looking directly to State law sources, rather than relying on statements in McNeal (which did not involve the law now at issue) about Presley (which ...


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