Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Pearcy

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

November 8, 2016

UNITED STATES OF AMERICA
v.
JODY RAY PEARCY, Defendant.

          Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Nancy C. Dickenson, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         Donald Edward Pearcy, previously sentenced by this court following his guilty plea to illegal possession of a firearm, 18 U.S.C. § 922(g), and possession of a stolen firearm, 18 U.S.C. § 922(j), 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 20, 2005, Pearcy 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”), Pearcy had a prior criminal record including six Virginia burglary convictions. The defendant objected to the probation officer's recommendation in the PSR that Pearcy be sentenced as an armed career criminal, the objection being based on the ground that the burglaries occurred within a four-day period in 1997, were limited in geographical location, and were part of a common scheme, although they involved different victims at different homes. The objection was overruled, and Pearcy was sentenced to the ACCA's mandatory minimum term of 180 months imprisonment. There was no appeal.

         On September 8, 2015, following Johnson v. United States, 135 S.Ct. 2551 (2015), the Federal Public Defender for this district was appointed by the court to represent Pearcy in connection with a possible § 2255 motion. On June 8, 2016, a § 2255 motion was filed by the Federal Public Defender, contending that Pearcy's ACCA predicates are invalid because the Virginia burglary statute does not qualify as a generic burglary. The government has filed a Motion to Dismiss and 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 (2016)). For the same reasons relied upon in Gambill, Pearcy argues that his Virginia burglary convictions are invalid as ACCA predicates.

         In addition to contending that Virginia burglary offenses are valid predicates under the ACCA, the government argues that the Johnson holding applies only to the residual clause and Pearcy has not shown that his burglary convictions were treated at sentencing as falling under that clause. Since the movant in an § 2255 proceeding “must shoulder the burden of showing” constitutional error, United States v. Frady, 456 U.S. 152, 170 (1982), the government contends that Johnson does not apply to him. Accordingly, the government asserts that Pearcy's motion “does not raise a Johnson claim and is time barred.” (United States' Mot. to Dismiss 1, ECF No. 52.) In addition, the government contends that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.