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United States v. Deel

United States District Court, W.D. Virginia, Big Stone Gap Division

November 1, 2016

UNITED STATES OF AMERICA
v.
FRANKLIN DEEL, Defendant.

          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

          James P. Jones, United States District Judge.

         Franklin 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.

         I.

         At his 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 taken.[1]

         Thereafter, 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 Jan. 10, 2005), appeal dismissed, 159 F. App'x 515 (4th Cir. 2005) (unpublished).

         On 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.).[2] 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.)

         At 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.)

         The government has filed a Motion to Dismiss the defendant's § 2255 motion. The issues have been fully ...


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