United States District Court, W.D. Virginia, Big Stone Gap Division
Jennifer R. Bockhorst, Assistant United States Attorneys,
Abingdon, Virginia, for United States; Nancy C. Dickenson and
Brian J. Beck, Assistant Federal Public Defenders, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones, United States District Judge.
Deel, previously sentenced by this court following his
conviction by a jury of illegal possession of a firearm, 18
U.S.C. § 922(g), has filed a motion under 28 U.S.C.
§ 2255, contending that his sentence under the
provisions of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is invalid.
For the reasons that follow, I will deny the motion.
sentencing on July 24, 2003, Deel was found by the court to
be an armed career criminal pursuant to the ACCA. The ACCA
provides that a person convicted of a violation of §
922(g), who “has three previous convictions by any
court . . . for a violent felony or a serious drug offense .
. . shall be . . . imprisoned not less than fifteen
years.” 18 U.S.C. § 924(e)(1). Deel had been
previously convicted of eight Virginia burglaries, each of
which was committed on different days against different
victims in December 1990 and January 1991, when the defendant
was 18 years old. No objection was made to the probation
officer's Presentence Investigation Report, which
recommended that Deel be sentenced as an armed career
criminal based upon the burglary convictions. His Sentencing
Guideline range was determined to be 188 to 235 months and he
was sentenced at the low end of that range. Judgment was
entered on July 25, 2003, and no appeal was
on July 30, 2004, Deel filed a pro se § 2255 motion,
claiming, among other things, that his attorney had failed to
advise him concerning an appeal. Following an evidentiary
hearing, at which Deel was represented by appointed counsel,
the motion was denied. Deel v. United States, No.
7:04CV00422 (W.D. Va. Jan. 10, 2005), appeal
dismissed, 159 F. App'x 515 (4th Cir. 2005)
September 8, 2015, following Johnson v. United
States, 135 S.Ct. 2551 (June 26, 2015), the Federal
Public Defender for this district was appointed to represent
Deel in connection with a possible § 2255 motion. On
April 20, 2016, the Federal Public Defender filed on
Deel's behalf a pleading entitled “Emergency Motion
to Vacate and Correct Illegal Sentence under 28 U.S.C. §
2255 and Johnson v. United States” in which it
was asserted that Deel's burglary convictions were
invalid predicates for his ACCA sentence enhancement. The
motion was dismissed without prejudice on the ground that it
was successive, see 28 U.S.C. § 2244(b)(3),
based upon Deel's earlier unsuccessful § 2255
motion. (Order, April 21, 2016, ECF No. 37.) On June 22,
2016, counsel for Deel filed with the court of appeals a
“Renewed Application for Leave to File a Successive
Motion under 28 U.S.C. § 2255, ” attaching thereto
a proposed § 2255 motion attacking Deel's ACCA
sentence based upon his burglary convictions. In re
Deel, No. 16-9482, Doc. 2-1, Doc. 2-2 (4th
Cir.). On June 24, 2016, counsel for Deel filed
in this court the § 2255 motion, along with a
“Motion to Hold § 2255 Filing in Abeyance, ”
reciting that Deel had requested permission from the court of
appeals to file the § 2255 motion, but that the court of
appeal had yet to make a ruling. Deel requested this court to
hold the § 2255 motion “in abeyance” pending
such permission. Thereafter, on June 27, 2016, the court of
appeals granted authorization to Deel to file a successive
motion based upon the possible application of
Johnson. In re Deel, No. 16-9482,
Doc. 6-2 (4th Cir. June 27, 2016). The clerk of the court of
appeals also transmitted to this court a Notice of
Authorization advising that the § 2255 application
attached to the motion for authorization was being
“transferred to the district court.” (ECF No.
43.) That 2255 motion submitted to the court of appeals was
docketed in this court on June 28, 2016. (ECF No. 44.)
Deel's sentencing in 2003, defense counsel recognized
that Deel was properly classified as an armed career
criminal, based upon his prior burglary convictions. As the
attorney stated to the court:
MR. JONES: Your Honor, if it please the court, Your Honor, if
it please the court, on behalf of Mr. Deel I would like to be
here before the court arguing substantively regarding his
classification as an armed career offender.
However, under the rationale the Fourth Circuit adopted, due
to each one of the underlying breaking and entering offenses
occurring at separate times, of course that's, that would
be inappropriate, I think.
. . . .
Mr. Deel's history does not reflect that he's a
recidivist. What his history reflects is there was a period
of time in which he committed a number of criminal acts that
have been defined as crimes of violence, that being the
generic burglary that the United States Supreme Court
resolved in the Taylor case.
(Sentencing Tr. 5, 7, July 24, 203, ECF No. 32.)
government has filed a Motion to Dismiss the defendant's
§ 2255 motion. The issues have been fully ...