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United States v. Poindexter

United States District Court, E.D. Virginia, Richmond Division

November 7, 2016



          John A. Gibney, Jr., United States District Judge.

         At his sentencing in July 2000, Antone Henry Poindexter was designated as an armed career criminal based in part on a prior conviction for second-degree assault in New York. Poindexter now challenges this designation in light of the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015) [hereinafter Johnson II], which held unconstitutional the residual clause of the Armed Career Criminal Act (the "ACCA"). Without the residual clause, Poindexter's second-degree assault conviction does not fall within the ACCA's definition of "violent felony, " meaning that Poindexter is not an armed career criminal. Accordingly, the Court will correct his unconstitutional sentence by granting him a resentencing hearing.

         I. BACKGROUND

         On May 2, 2000, a jury found Poindexter guilty of one count of conspiracy, four counts of possession of a firearm by a convicted felon, and four counts of making false statements to a firearms dealer. At the time of his sentencing, Poindexter qualified as an armed career criminal based on three predicate offenses: (1) second-degree assault in New York, (2000 PSR ¶ 24); (2) possession of cocaine with intent to distribute in New Jersey, (id. ¶ 22); and (3) criminal sale of controlled substances, fifth, in New York, (id ¶ 21). This increased his possible sentence on the firearm possession convictions from a maximum often years to a mandatory minimum of fifteen years. As noted in the presentence report, based on an adjusted offense level of 33 and a criminal history category of VI, Poindexter's guideline range was 235 to 293 months.[1] On July 10, 2000, the Court sentenced Poindexter to a total of 235 months imprisonment with five years of supervised release to follow.[2]

         On June 14, 2016, the Fourth Circuit authorized Poindexter to file a second or successive § 2255 motion because Poindexter had made a prima facie showing that Johnson II may apply to his case. Poindexter filed the pending motion (the "§ 2255 Motion") on June 17, 2016.[3]


         Section 2255 allows a federal prisoner to challenge a "sentence . .. imposed in violation of the Constitution or laws of the United States, or ... in excess of the maximum authorized by law." 28 U.S.C. § 2255(a). If a prisoner seeks to challenge his sentence based on a newly recognized constitutional right, he has one year to file his petition from the date the Supreme Court recognized that right, "if the right has been . . . made retroactively applicable to cases on collateral review." Id. § 2255(f)(3). Additionally, for a successive motion under § 2255, the motion "must be certified ... by a panel of the appropriate court of appeals to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. § 2255(h)(2). If a court finds that § 2255 entitles the prisoner to relief, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

         The Fourth Circuit authorized Poindexter to file a successive motion. Additionally, Poindexter, by counsel, filed the successive motion within one year of the Supreme Court deciding Johnson II, which newly recognized a constitutional right made retroactively applicable on collateral review.[4] Thus, the only question that remains is whether Poindexter's sentence violates the Constitution or exceeds the maximum sentence authorized by law.

         Federal law prohibits certain people, including convicted felons, from possessing firearms. 18 U.S.C. § 922(g). Generally, the maximum sentence for this crime is ten years. Id. § 924(a)(2). If the offender has three previous convictions for violent felonies or serious drug offenses, however, the ACCA imposes a mandatory minimum of fifteen years, and a maximum sentence of life imprisonment. Id. § 924(e)(1). In addition to adding the mandatory minimum, this change in the maximum imprisonment re-classifies the crime from a Class C to a Class A felony, which then authorizes a maximum term of supervised release after imprisonment of five years rather than three years. Id. §§ 3559(a), 3583(b).

         The ACCA defines "violent felony" 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) (emphasis added). In Johnson II, the Supreme Court held that the italicized language, known as the residual clause of the ACCA, is unconstitutionally vague. 135 S.Ct. at 2557. Thus, after Johnson II, an offender's prior conviction must satisfy either the force clause found in § 924(e)(2)(B)(i), or the enumerated offenses clause found within § 924(e)(2)(B)(ii), to qualify as a violent felony.

         At the time of sentencing, the Court found that two of Poindexter's prior convictions qualified as serious drug offenses, and one-second-degree assault in New York-qualified as a violent felony. The Court did not specify which clause of the violent felony definition it looked to when assessing the second-degree assault conviction.[5] Nevertheless, assault does not satisfy the enumerated offenses clause, and Johnson II rendered the residual clause unavailable. Thus, second-degree assault in New ...

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