United States District Court, W.D. Virginia, Abingdon Division
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
P. Jones United States District Judge.
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.
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).
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.
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).
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
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 ...