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United States v. Shirks

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

November 8, 2016

UNITED STATES OF AMERICA
v.
CHARLES LEE SHIRKS, Defendant.

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

          OPINION AND ORDER

          James P. Jones, United States District Judge.

         Charles 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.

         I.

         At his 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).

         As 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 appeal.

         On 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.

         The government has filed a Motion to Dismiss the defendant's § 2255 motion. The issues have been fully briefed and are ripe for decision.[1]

         II.

         Prior 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).

         I 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 ...


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