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United States v. Johnson

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

December 29, 2016

UNITED STATES OF AMERICA
v.
STEVE ALLEN JOHNSON, 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

         Steve Allen Johnson, previously sentenced by this court following conviction of illegal possession of a firearm, has filed a motion under 28 U.S.C. § 2255, contending that his enhanced sentence under the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was invalid. For the reasons that follow, I will deny the motion.

         I.

         Johnson entered a guilty plea pursuant to a written Plea Agreement to an Indictment charging him with possession of a firearm after having been convicted of a felony and while being an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(1), (3). Prior to his sentencing, a probation officer prepared a Presentence Investigation Report (“PSR”) recommending that Johnson receive an enhanced sentence under the provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e), based upon his prior Tennessee burglary convictions. On April 2, 2003, Johnson was sentenced by this court under the ACCA to the statutory mandatory minimum fifteen years imprisonment, to be followed by three years of supervised release.[1] There was no appeal. Johnson completed his sentence of imprisonment on March 1, 2016, and is now serving his three-year term of supervision.

         Following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), the court appointed the Federal Public Defender for this district to represent Johnson in connection with a possible § 2255 motion. On October 29, 2015, the Federal Public Defender filed a § 2255 motion, contending that Johnson's ACCA sentence was invalid.[2] In response, the United States moved to dismiss.

         The issues have been fully briefed and orally argued and are ripe for decision.

         II.

         The ACCA provides for a mandatory minimum sentence of fifteen years for defendants convicted under 18 U.S.C. § 922(g) if they have “three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). 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, which includes the crime of burglary, 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.

         In Taylor v. United States, 495 U.S. 575, 598 (1990), the Supreme Court held that the word “burglary” as used in the ACCA meant a felony crime that had the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” This generic definition, the Court noted, excluded various state crimes that were called burglaries, but involved a place other than a building or structure, such as an automobile, or a “‘booth or tent, ...


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