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United States v. Berry

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

October 20, 2016

UNITED STATES OF AMERICA
v.
CHRIS BERRY, Defendant.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for the United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge

         Chris 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.

         For the following reasons, I find that the defendant cannot show that his sentence should be vacated, and his motion must be denied.

         I.

         On July 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).[1] Prior to his guilty plea, the government indicated that it would seek to have his sentence enhanced pursuant to the ACCA.

         At the 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 follows:

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 that regard?
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 distribution.
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 ΒΆ 43); ...


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