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United States v. Jarrell

United States District Court, W.D. Virginia, Abingdon Division

November 9, 2016

UNITED STATES OF AMERICA
v.
RONALD BOLEN JARRELL, Defendant.

          James P. Jones United States District Judge 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.

         Ronald Bolen Jarrell, previously sentenced by this court following his guilty plea to 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 April 15, 2004, Jarrell 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”), Jarrell had been previously convicted of three Virginia felony burglaries, one offense occurring in 1991 and two on different dates in 2001. (PSR ¶¶ 30, 32, 34.) No objection was made to the probation officer's recommendation in the PSR that Jarrell be sentenced as an armed career criminal. He was sentenced to 180 months imprisonment. He did not appeal.

         Thereafter, on November 22, 2006, Jarrell filed a pro se § 2255 motion, contending that because the dwellings that he had been convicted of burglarizing were unoccupied, the convictions were not valid ACCA predicates. The motion was denied on the ground that his prior burglary convictions “clearly [met] the Taylor [v. United States, 495 U.S. 575 (1990)] definition of a violent felony.” Jarrell v. United States, No. 7:06CV00690, 2006 WL 3487630, at *2 (W.D. Va. Dec. 2, 2006).

         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 Jarrell in connection with a possible § 2255 motion. On May 12, 2016, the Federal Public Defender filed in the court of appeals an Application for Leave to File a Successive Motion Under 28 U.S.C. § 2255 on Jarrell's behalf, together with a proposed § 2255 motion. The court of appeals granted the application and transferred the § 2255 motion for filing in this court. In re Jarrell, No. 16-736 (4th Cir. June 3, 2016). The § 2255 motion asserts that Jarrell's 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 ...


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