United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge
issue on defendant's amended motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 is whether the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
operates to invalidate the fifteen-year sentence defendant
received pursuant to the Armed Career Criminal Act
("ACCA") for possession of a firearm and ammunition
by a convicted felon, in violation of 18 U.S.C. §
922(g). Because the matter has been fully briefed and the
facts and law are fully set forth in the existing record,
neither oral argument nor an evidentiary hearing would aid
the decisional process. Accordingly, the matter is now ripe for
March 4, 2011, defendant pled guilty pursuant to a written
plea agreement to one count of conspiracy to distribute
N-Benzylpiperazine, in violation of 21 U.S.C. §§
841 and 846, and one count of possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Thereafter, on July 15, 2011, defendant
received a sentence of 36 months' imprisonment for the
violation of §§ 841 and 846, and a sentence of 180
months' imprisonment for the violation of § 922(g),
to run concurrently with the sentence of 36 months'
imprisonment for the violation of §§ 841 and
A Memorandum Opinion dated August 1, 2011, reflects the
grounds for the sentences defendant received for his crimes.
United States v. Major (“Major I"), 801
F.Supp.2d 511, 513-18 (E.D. Va. 2011).
sentence of 180 months' imprisonment for the violation of
§ 922(g) was mandated by the ACCA, which requires a
fifteen-year custody sentence for convictions pursuant to
§ 922(g) where, as here, an offender has "three
previous convictions by any court ... for a violent felony
... committed on occasions different from one another."
18 U.S.C. § 924(e)(1). In this regard, the ACCA defines
a violent felony as any crime:
(i) that has " 'as an element the use, attempted
use, or threatened use of physical force against the person
of another' ";
(ii) that constitutes " 'burglary, arson, or
extortion, [or] involves use of explosives'"; or
(iii) that " 'otherwise involves conduct that
presents a serious potential risk of physical injury to
Major 7, 801 F.Supp.2d at 515 (quoting 18 U.S.C.
§ 924(e)(2)(B)). These three clauses of §
924(e)(2)(B) are often referred to respectively as (i) the
"force clause, " (ii) the "enumerated crimes
clause, " and (iii) the "residual clause."
With respect to the enumerated crimes clause, the Supreme
Court has defined an ACCA "generic" burglary as
"any crime, regardless of its exact definition or label,
having the basic elements of unlawful, unprivileged entry
into, or remaining in, a building or structure, with intent
to commit a crime." Taylor v. United States,
495 U.S. 575, 599 (1990).
Major I reflects, "a careful review of the
record ... revealed that [the] ACCA fifteen-year term of
imprisonment was mandatory in this case" in light of
defendant's three 1998 convictions in the Fairfax County
Circuit Court for statutory burglary, in violation of Va.
Code § 18.2-91; these burglaries occurred on March 4,
1998, March 11, 1998, and April 3, 1998. Major /,
801 F.Supp.2d at 515-16. The conclusion that a fifteen-year
sentence was required by the ACCA resulted from application
of the modified categorical approach to defendant's three
prior convictions; the modified categorical approach allows
"a sentencing court... [to] assess the underlying
charging documents' or other specifically-approved
documents or material to ascertain whether the offense
qualifies as an ACCA predicate offense." Id. at
respect to the March 11, 1998 burglary, "[t]he
government produced multiple court documents from the Fairfax
County Circuit Court..., including (i) the indictment, (ii)
the signed plea agreement, (iii) the sentencing order, and
(iv) the plea and sentencing transcripts." Id.
The indictment "specifically charged defendant with
statutory burglary, in violation of Va. Code § 18.2-91,
" on the basis of the following factual allegations:
On or about the 11th day of March, 1998, in the County of
Fairfax, Joshua B. Tart did break and enter the dwelling house
of Mary Hopkins and Eileen Merton, 3963 Rosebay Court,
Fairfax, Virginia, with the intent to commit larceny ..., [in
violation of] Va. Code § 18.2-91.
Id. at 517. The plea transcript further established
that defendant admitted breaking "into the Rosebay Court
residence through a basement window" and taking items
such as "jewelry, CDs, money, a camera, and a
television." Id. (citing Plea Transcript at
11). Id. As 'the presence of a basement window
in this recitation of facts necessarily implicates an
attached 'building or structure, ' defendant sensibly
conceded in the course of the final sentencing that this
first burglary indeed meets Taylor's definition
of a generic burglary." Id. (citing
Taylor, 495 U.S. at 599). Thus, at the time of
defendant's sentencing, "[i]t was undisputed ...
that the [March 11, 1998] burglary constitutes a valid
predicate conviction under the ACCA [enumerated crimes
respect to the March 4, 1998 and April 3, 1998 burglaries,
the government was unable to produce indictments or other
Fairfax County charging documents. See Id. at 517.
Although the government produced plea agreements and
sentencing orders for the convictions for these two
burglaries, Major I reflects that these documents
did not "shed any light on the specific facts underlying
either of those convictions, other than the date of the
respective burglar pes]." Id. Importantly,
however, the government produced the transcript from the
September 16, 1998 plea hearing in Fairfax County Circuit
Court, which reflects that "defendant acknowledged that
on each of these two occasions, he broke into a
'dwelling, ' 'house' or 'residence, '
without the permission or consent of the owners, and took
various personal items from the residences."
Id. (citing Plea Transcript at 11-13). Specifically,
"during the daytime of March 4, 1998, defendant broke
into the residence of Laura Dawson, located at 3994 Gumwood
Court, in Chantilly, Virginia, with the intent to commit
larceny, " and once inside "defendant took from the
residence a knife collection, alcohol and $600 in cash."
Id. (citing Plea Transcript at 5, 11). About a month
later, "during the nighttime of April 3, 1998, defendant
broke into the residence of Roger Early, located at 4108
Plaza Lane in Fairfax, Virginia, again with the intent to
commit larceny, " and "[o]n that occasion,
defendant entered the dwelling through a 'rear
window' and took a shotgun from the residence."
Id. (quoting Plea Transcript at 13). On the basis of
these facts, Major I reflects that the March 4, 1998
and April 3, 1998 burglaries do not constitute ACCA generic
burglaries, but that these prior convictions
"nonetheless constitute 'violent felon[ies]'
under [the] ACCAQ residual clause because each burglary
4involve[d] conduct that presented] a serious risk of
physical injury to another.' " Id. at 518
(quoting 18 U.S.C. § 924(e)(2)(B)). Accordingly,
Major I reflects that "the government met its
burden of establishing three qualifying predicate convictions
under [the] ACCA, thus mandating a minimum fifteen-year
custody sentence in this [c]ase." Id.
February 25, 2013, nearly two years after defendant received
his sentence, the government filed a motion to reduce
defendant's sentence pursuant to Rule 35(b), Fed. R.
Crim. P. United States v. Major, No. 11-cr-16 (E.D.
Va. Feb. 25, 2013) (Motion) (Doc. 104). By Order dated March
8, 2013, the government's motion was granted, and
accordingly, defendant's custody sentence was reduced
from 180 months' imprisonment to 84 months'
imprisonment. United States v. Major, No. 11-cr-16
(E.D. Va. Mar. 8, 2013) (Order) (Doc. 109).
on June 26, 2015, the Supreme Court issued its decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which held that the ACCA residual clause is
unconstitutionally vague, and therefore "imposing an
increased sentence under the residual clause of the [ACCA]
violates the Constitution's guarantee of due
process." Id. at 2563. Thereafter, on April 18,
2016, the Supreme Court held that Johnson was a new
"substantive rule that has retroactive effect in cases
on collateral review." Welch v. United States,
136 S.Ct. 1257, 1268 (2016).
March 23, 2016, defendant filed a timely motion-which was
amended that same day-to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, on the ground
that in light of the Supreme Court's decision in
Johnson, defendant's sentence is
unconstitutional insofar as it is premised on the ACCA
residual clause. Defendant further contends that he no longer
qualifies as an armed career criminal pursuant to the ACCA,
and thus should not have been sentenced to a term of
imprisonment exceeding ten years, the statutory maximum for a
violation of § 922(g) when the ACCA does not apply.
government's request, defendant's § 2255 amended
motion was stayed pending resolution of two Supreme Court
cases, namely (i) Welch, which held that
Johnson announced a new substantive rule that has
retroactive effect in cases on collateral review, and (ii)
Mathis v. United States,136 S.Ct. 2243 (2016),
which elucidated the application of the modified categorical
approach in the context of the ACCA. After the Supreme Court
issued its decisions in Welch and Mathis,
the government filed a timely response to defendant's
§ 2255 amended motion in which the government contends
that although in Major I, two of three prior
convictions were found to be crimes of violence pursuant to
the now-invalidated ACCA residual clause, the ACCA
nonetheless requires a minimum fifteen-year sentence because
these prior convictions also constitute generic burglary
pursuant to the ACCA enumerated crimes clause. In support of
this contention, the government points to a Fourth Circuit
decision, United States v. Foster,662 F.3d 291 (4th
Cir. 2011), which was decided approximately three months
after defendant received his sentence; the Fourth Circuit in
Foster squarely addressed whether prior convictions
for statutory burglary in Virginia qualify as generic