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United States v. Ayun

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

October 11, 2016

UNITED STATES OF AMERICA
v.
SAL NIE AYUN, Defendant.

          By: James P. Jones United States District Judge Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge

         Sal Nie Ayun, a federal inmate previously sentenced by this court following conviction of possession of a firearm after having been convicted of a felony, has filed a motion under 28 U.S.C. § 2255, contending that his enhanced sentence under the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.A. § 924(e), is invalid. For the reasons that follow, I will deny the motion.

         I

         Ayun entered a guilty plea pursuant to a written Plea Agreement to an Indictment charging him with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Prior to his sentencing, a probation officer prepared a Presentence Investigation Report (“PSR”) recommending that Ayun receive an enhanced sentence under the provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e), based upon his prior North Carolina convictions of eleven felony crimes of breaking and entering. No objections were filed to the PSR and on June 1, 2005, Ayun was sentenced under the ACCA to fifteen years imprisonment. There was no appeal.

         On August 12, 2015, Ayun filed a pro se motion pursuant to 28 U.S.C. § 2255, seeking to have his sentence vacated based upon the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015). On August 31, 2015, the court appointed the Federal Public Defender for this district to represent Ayun in connection with the motion. On November 4, 2015, the Federal Public Defender filed a supplemental and amended § 2255 motion. In response, the United States moved to dismiss.

         The issues have been fully briefed and orally argued and are ripe for decision.

         I

         The ACCA provides for a mandatory minimum sentence of fifteen years for defendants convicted under 18 U.S.C. § 922(g) if they have “three previous convictions by any court . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Prior to Johnson, the term “violent felony” was defined as any crime punishable by imprisonment for a term exceeding one year . . . that -

(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). The first clause is referred to as the “force clause.” The first portion of the second clause, which includes the crime of burglary, is known as the “enumerated crime clause.” The second portion of that clause (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) is called the “residual clause” and was found to be unconstitutionally vague in Johnson. The force and enumerated crime clauses were untouched by Johnson.

         In Taylor v. United States, 495 U.S. 575, 598 (1990), the Supreme Court held that the word “burglary” as used in the ACCA meant a felony crime that had the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” This generic definition, the Court noted, excluded various state crimes that were called burglaries, but involved a place other than a building or structure, such as an automobile, or a “‘booth or tent, or any boat or vessel, or railroad car.'” Id. at 599 (referring to Missouri burglary statute).

         The United States has moved to dismiss Ayun's § 2255 motion, contending that “Johnson v. United States is not a springboard from which to launch a reconsideration of every Armed Career Criminal determination.” (United States' Mot. to Dismiss 4.) Accordingly, it contends that Ayun's motion is barred by the applicable statute of limitations, since it was not filed within one year of the date his conviction became final. See 28 U.S.C. § 2255(f)(1). In response, Ayun points out that the record does not show whether the sentencing court treated Ayun's burglary convictions under the residual clause or the enumerated crime clause of the ACCA, and thus Johnson is applicable and because that ...


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