United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for the United States; Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge
Berry has moved under 28 U.S.C. § 2255 to vacate the
sentence imposed on him by this court in 2012 under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e). He relies on the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which strikes down the residual clause definition of a
violent felony contained in the ACCA and was made retroactive
by the Court in Welch v. United States, 136 S.Ct.
1257 (2016). The government opposes the motion on the ground
that Berry did not contest at his sentencing that he had the
necessary three ACCA predicate convictions for serious drug
offenses, which predicates are untouched by Johnson.
The government asserts that Berry's claim, made now for
the first time, that two of the drug offenses occurred on the
same occasion and thus are not proper predicates is
defaulted, untimely, and unavailing on the merits.
following reasons, I find that the defendant cannot show that
his sentence should be vacated, and his motion must be
25, 2011, defendant Berry was indicted in this court on
charges arising out of a crack cocaine trafficking and stolen
firearms conspiracy. On November 29, 2011, he pleaded guilty
to two of those charges: being a felon in possession of
firearms, in violation of 18 U.S.C. § 922(g)(1), and
possessing stolen firearms, in violation of 18 U.S.C. §
922(j). Prior to his guilty plea, the government
indicated that it would seek to have his sentence enhanced
pursuant to the ACCA.
defendant's change of plea hearing, I inquired as to
whether the defendant contested his categorization as an
armed career criminal and whether he disputed that his three
prior drug offenses occurred on separate occasions, as
necessary under the ACCA. Specifically, the colloquy was as
THE COURT: Mr. Chafin [defense attorney], let me ask you this
about the defendant's status - possible status as an
armed career criminal: Have you made any determination in
MR. CHAFIN: Judge, it is believed that he will be determined
to be an armed career criminal.
THE COURT: All right.
MR. CHAFIN: It is believed that he will. We did not stipulate
to those facts, but we do believe that based upon - he
appeared in the Washington County Circuit Court and entered a
plea of guilty to three charges, on the same day, of
THE COURT: I see. That occurred on different occasions?
MR. CHAFIN: That occurred on different - different - THE
COURT: The crimes occurred on different occasions?
MR. CHAFIN: The crimes occurred on different occasions.
(Change of Plea Hr'g Tr. 13, ECF No. 506.) The
Presentence Investigation Report (“PSR”),
prepared prior to Berry's sentencing, described
Berry's five prior state felony convictions for the
following offenses: (1) drug distribution for selling a
40-milligram oxycodone pill to a confidential informant on
May 4, 2005 (PSR ¶ 41, ECF No. 289); (2) drug
distribution for selling 2.1 grams of cocaine to a
confidential informant on May 4, 2005 (id. at ¶
42); (3 & 4) two counts of grand larceny for stealing a
Honda ATV on May 10, 2005 and a pressure washer on May 22,
2005 (id. at ¶ 43); ...