United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
Cobbs, proceeding pro se, filed this 28 U.S.C.
§ 2255 Motion seeking relief based upon Johnson v.
United States, 135 S.Ct. 2551 (2015) . The Government
has responded and agrees with Cobbs that his § 2255
Motion should be granted and that Cobbs should be
resentenced. For the reasons that follow, the § 2255
Motion (ECF No. 203) will be granted.
Court found Cobbs guilty of one count of possession of
firearm by convicted felon (Count One) and one count of
possession of ammunition by a convicted felon. (J. 1, ECF No.
113.) As noted by the Supreme Court,
Federal law forbids certain people-such as convicted felons,
persons committed to mental institutions, and drug users-to
ship, possess, and receive firearms. § 922(g). In
general, the law punishes violation[s] of this ban by up to
10 years' imprisonment. § 924(a)(2). But if the
violator has three or more earlier convictions for a
"serious drug offense" or a "violent felony,
" the Armed Career Criminal Act increases his prison
term to a minimum of 15 years and a maximum of life. §
Johnson, 135 S.Ct. at 2555 (citation omitted). At
sentencing it was determined that Cobbs had three prior
convictions that qualified as serious drug offenses or
violent felonies. These charges included: two prior
convictions for Delivery of a Controlled Substance in the
County Criminal District Court in Dallas, Texas; and one for
Escape in the County Criminal District Court in Dallas.
(Presentence Report ¶¶ 16-17, 24.) Cobb's
sentencing guidelines range was 235 to 293 months.
(Id. ¶ 55.) Pursuant to the Armed Career
Criminal Act, Cobbs's statutory guidelines range was
fifteen years to life in prison. (Id.) The Court
sentenced Cobbs to 235 months of imprisonment on each count
to run concurrently.
Armed Career Criminal Act ("ACCA") defines a
violent felony as: "any crime punishable by imprisonment
for a term exceeding one year" and "(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 risk of physical injury to another." 18
U.S.C. § 924(e)(2)(B) (emphasis added). "The
closing words of this definition, italicized above, have come
to be known as the Act's residual clause."
Johnson, 135 S.Ct. at 2556. In Johnson, the
Supreme Court held that the residual clause of the Armed
Career Criminal Act is unconstitutionally vague. Id.
"asserts that he no longer qualified for an ACCA
enhancement in light of the U.S. Supreme Court's
invalidation of the residual clause of the ACCA in
Johnson. [Cobb] argues that Johnson . . .
applies retroactively, and thus the statutory maximum for his
convictions on each count is 120 months in prison, not the
mandatory minimum of 180 months that this Court used to
calculate his prison sentence." (Gov't's Resp.
to 3.) The Government "agrees that Johnson
applies retroactively to Petitioner's claim for a reduced
sentence in this case. (Id. at 4.) Specifically, the
At the time of sentencing, the Court analyzed Cobb's
prior convictions under the ACCA residual
clause. . . . Accordingly, once Johnson
is applied retroactively and the residual clause of the ACCA
no longer applies, Petitioner would not be ACCA eligible.
If Petitioner were sentenced today, he would fall under 18
U.S.C. § 924(a)(2) for a maximum of 120 months per
count. But because Petitioner faced two prohibited persons
counts under 18 U.S.C. § 922(g)(1), the Court could
stack sentences to achieve a total sentence that exceeds that
amount, indeed that matches the 235 month sentence imposed,
see U.S.S.G. § 5G1.2(d). Petitioner's
Guidelines range on both counts combined, though, would have
been just 100-125 months,  which in this case, constitutes time
served. Further, the two counts of conviction should have
merged as a simultaneous possession of a firearm and
ammunition by a prohibited person is a single offense, with a
total maximum sentence of 120 months. See United States
v. Dunford, 148 F.3d 385 (4th Cir. 1998). Therefore, the
United States does not object to a reduction of the
. . . .
In this case, the United States agrees Petitioner's
sentence should have been capped at 120 months because the
two counts of conviction should have merged. Thus, he has
already served more than the ten-year maximum for his
felon-in-possession conviction. In this circumstance, a
resentencing is not necessary to grant relief under §
(Id. at 4-5.)
the residual clause of the ACCA invalidated, Cobb would only
have two remaining qualifying felony convictions. Thus, he
would no longer qualify for the enhanced sentence under the
ACCA. Under Dunford, Cobbs conviction for possession
of a firearm and possession of ammunition would merge, and
Cobbs would face a maximum sentence of 120 months.
Dunford, 148 F.3d at 388-90. Cobbs has served more
than 120 months of incarceration, as he has been in custody
since May 25, 1999. (See PSR 1.) In light of the
foregoing circumstances, Cobb's § 2255 Motion (ECF
No. 203) will be granted. Cobbs's sentence will be
reduced to 120 months. The Bureau of Prisons will be directed
to release Cobbs immediately.
motions for appointment of counsel (ECF Nos. 205, 207) will
be denied. Cobb's Application To Proceed In ...