United States District Court, W.D. Virginia, Charlottesville Division
K. Moon Judge
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.
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.
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.
AND PRELIMINARY LEGAL ISSUES
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
The Crime of Robbery in Virginia
The Fourth Circuit’s Decision in Presley Is No
Longer Good Law.
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.
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.
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)).
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
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