United States District Court, W.D. Virginia, Big Stone Gap Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones, United States District Judge.
Lee Shirks, previously sentenced by this court following
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 September 10, 2004, Shirks 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).
shown by the probation officer's Presentence
Investigation Report (“PSR”), Shirks had been
previously convicted of four Virginia burglaries, each
occurring on separate dates in 1999 and 2000. His Sentencing
Guideline range was determined to be 180 to 210 months and he
was sentenced at the low end of that range. There was no
August 21, 2015, following Johnson v. United States,
135 S.Ct. 2551 (2015), the Federal Public Defender for this
district filed on Shirks' behalf a Motion to Vacate,
Correct or Set Aside Sentence Under 28 U.S.C. § 2255.
The motion asserts that Shirks' Virginia burglary
convictions were invalid predicates for his ACCA sentence.
government has filed a Motion to Dismiss the defendant's
§ 2255 motion. The issues have been fully briefed and
are ripe for decision.
to Johnson, the term “violent felony”
was defined 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). The first clause is referred
to as the “force clause.” The first portion of
the second clause is known as the “enumerated crime
clause.” The second portion of that clause (“or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”) is called the
“residual clause” and was found to be
unconstitutionally vague in Johnson. The force and
enumerated crime clauses were untouched by Johnson.
The holding in Johnson was made retroactive to cases
on collateral review in a decision by the Supreme Court in
Welch v. United States, 136 S.Ct. 1257 (2016).
recently held that a Virginia burglary does not qualify as an
enumerated offense because the Virginia statute is broader
than the generic burglary of the enumerated crime clause and
because the statute is not divisible, meaning that it lists
“multiple, alternative means of satisfying one (or
more) of its elements.” United States v.
Gambill, No. 1:10CR00013, 2016 WL 5865057, at *2 (W.D.
Va. Oct. 7, 2016) (quoting Mathis v. United States,
136 S.Ct. 2243, 2249 ...