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United States v. Major

United States District Court, E.D. Virginia, Alexandria Division

July 27, 2016

UNITED STATES OF AMERICA
v.
JOSHUA BRANDON MAJOR Civil No. 1:16cv324

          MEMORANDUM OPINION

          T.S. Ellis, III United States District Judge

         At issue on defendant's amended motion[1] 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.[2] Accordingly, the matter is now ripe for disposition.

         I.

         On 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 846.[3] 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).

         Defendant's 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 another.' "

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).

         As 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 515.[4]

         With 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[5] 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 clause]." Id.

         With 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.

         On 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).

         Thereafter, 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).

         On 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.

         At the 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 ...


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