United States District Court, W.D. Virginia, Abingdon Division
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
P. Jones United States District Judge
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.
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.
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.
issues have been fully briefed and orally argued and are ripe
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.
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).
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