United States District Court, W.D. Virginia, Big Stone Gap Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, for
OPINION AND ORDER
P. Jones United States District Judge.
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.
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).
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.
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.
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 (2016)). For the same reasons relied
upon in Gambill, Pearcy argues that his Virginia
burglary convictions are invalid as ACCA predicates.
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