United States District Court, W.D. Virginia, Big Stone Gap Division
December 29, 2016
UNITED STATES OF AMERICA
STEVE ALLEN JOHNSON, Defendant.
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States
J. Beck, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
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
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. There was no appeal. Johnson
completed his sentence of imprisonment on March 1, 2016, and
is now serving his three-year term of supervision.
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. In response, the United States moved to
issues have been fully briefed and orally argued and are ripe
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.
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, or any boat or vessel, or railroad car.'”
Id. at 599 (quoting Missouri burglary statute, Mo.
Rev. Stat. § 560.070 (1969) (repealed)).
United States has moved to dismiss Johnson's § 2255
motion, contending that “Johnson v. United
States is not a springboard from which to launch a
reconsideration of every Armed Career Criminal
determination.” (United States' Mot. to Dismiss 3,
ECF No. 28.) Accordingly, it contends that Johnson's
motion is barred by the applicable statute of limitations,
because it was not filed within one year of the date his
conviction became final. See 28 U.S.C. §
2255(f)(1). In response, Johnson contends that the record
shows that Johnson's burglary convictions were
“based at least in part on the now vacated residual
clause” (Resp. in Opp'n 3, ECF No. 29), and thus
his motion was timely filed within one year of the
Johnson decision. See 28 U.S.C. §
2255(f)(3). In addition, Johnson asserts that he has been
prejudiced by the use of the residual clause, because his
Tennessee burglary convictions are invalid ACCA predicates
under the enumerated crime clause.
not necessary for me to resolve the government's statute
of limitations defense, because I agree with its alternative
argument that the Tennessee burglary statutes under which
Johnson was convicted do in fact correspond to a generic
burglary under Taylor when examined using the
charging documents approved in Shepard v. United
States, 544 U.S. 13, 26 (2005).
was convicted of four charges of burglary in Tennessee. On
May 12, 1980, he unlawfully entered the Hancock County High
School and was convicted of third degree burglary for that
crime. He was sentenced to three to five years imprisonment
on May 4, 1981. (PSR ¶ 28.) On September 17, 1982, he
unlawfully entered the Hancock County Farmers Co-Op and was
convicted of third degree burglary and was sentenced to five
years custody. (PSR ¶ 30.) On July 28, 1985, he
unlawfully entered a church and a private residence and was
convicted of one count of third degree burglary and one count
of first degree burglary. He was sentenced to three years in
prison for the third degree burglary and five years for the
first degree burglary. (PSR ¶ 31.)
argument is directed as to his third degree burglary
convictions. The pre-1989 Tennessee burglary statutes defined
third-degree burglary as “the breaking and entering
into a business house, outhouse, or any other house of
another, other than dwelling house, with the intent to commit
a felony.” Tenn. Code Ann. § 39-904 (1975 Repl.
Vol.); Tenn. Code Ann. § 39-3-404(a)(1) (1982 Repl.
Vol.); United States v. Taylor, 800 F.3d 701, 719
n.8 (6th Cir. 2015). There is no disagreement that this
definition conforms to that of the ACCA's generic
burglary. But the same statutes also defined other crimes, in
separate paragraphs, with separate penalties, as third-degree
burglary. The structure of the statutes renders them
divisible, allowing application of the modified categorical
approach and consideration of Shepard-approved
documents. Mathis v. United States, 136 S.Ct. 2243,
2256-57 (2016). One of the separate crimes delineated in the
statutes is safe-cracking, defined as when “any person
who, with intent to commit crime, breaks and enters, either
by day or by night, any building, whether inhabited or not,
and opens or attempts to open any vault, safe, or other
secure place by any means . . . . ” Tenn. Code Ann.
§ 39-904 (1975 Repl. Vol.); Tenn. Code Ann. §
39-3-404(b)(1) (1982 Repl. Vol.)
argument in this case is that the state burglary indictments,
made part of the record in this case, do not expressly
disavow the possibility that Johnson was charged with the
separate, non-generic, safe cracking crime. I disagree.
Indictment for the 1980 third degree burglary committed by
Johnson charged him with unlawfully breaking and entering
“into the school house of Hancock County” and
stealing “[h]amburger meat, hams, bread, and pineapple
juice.” (ECF No. 23-3, p. 6.) The 1982 third degree
burglary was described in the Indictment as unlawfully
breaking and entering “the business house of Hancock
County Farmers CO-OP” and stealing “kerosene
heaters, air compressor, hand tools.” (ECF No. 23-2, p.
10.) The 1985 third degree burglary Indictment charged that
Johnson unlawfully broke and entered “Duck Creek
Church” and stole “a [c]assette
[r]ecorder.” (ECF No. 23-1, p. 8.) No mention is made
in any of the indictments of any vault, safe, or other secure
instructed by the court of appeals that in considering
Shepard-approved documents under the so-called
modified categorical approach, I must interpret them using
common sense, and should not “wear blinders” or
“cast logic aside merely because a defendant conjures
up a speculative possibility.” United States v.
Foster, 662 F.3d 291, 296 (4th Cir. 2011) (internal
quotation marks, alterations, and citation omitted),
reh'g en banc denied, 674 F.3d 391 (4th Cir.
2012). “Rather, the ACCA is part of the real world, and
courts should not refuse to apply it because of
hypotheticals that bear no resemblance to what actually goes
on.” Id. (internal quotation marks,
alterations, and citations omitted).
indictments here clearly charge the unlawful entry into a
building or structure - a public school, the county farmers
co-op, and a church. The items stolen by the intruder are not
items normally kept in safes or vaults and are “classic
indicia” that they were located in a building or
structure. Id. at 295 n.7. “In the land of Oz,
I suppose there may be two or more ways to interpret the
clear facts set forth in the Shepard-approved
documents. On this side of the rainbow, however, the [places
charged] are buildings and structures.”
Foster, 674 F.3d at 393 (Wilkinson, J., concurring
in denial of rehearing en banc).
reasons stated, the United States' Motion to Dismiss in
Response to Petitioner's Motion for Relief Pursuant to
Title 28, United States Code, Section 2255 (ECF No. 28) is
GRANTED and the defendant's Emergency Motion to Vacate
Sentence and for Other Relief Under 28 U.S.C. § 2255 and
Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF
No. 23) is DENIED.
certificate of appealability may issue only upon a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). After reviewing
the claims presented in light of the applicable standard, I
find that a certificate of appealability is not warranted.
and it is DENIED.
 Johnson could have been sentenced to
up to five years of supervision under the ACCA. See
United States v. Randall, No. 16-11753, 2016 WL 7118367,
at *1 (11th Cir. Dec. 7, 2016) (unpublished) (noting that a
successful challenge to ACCA enhancement reduces the
underlying conviction from a Class A felony to a Class C
 Because Johnson has fully served his
sentence of imprisonment, and his three-year term of
supervision does not exceed the statutory limit even if his
ACCA sentence were found be to be invalid, see 18
U.S.C. §§ 3559(a)(3), 3583(b)(2), a question arises
as to any possible relief available under § 2255 in his
case. It is theoretically possible, of course, that upon
resentencing, the court might impose less than three years of
supervision, although that is highly unlikely in view of
Johnson's past criminal record. In addition, counsel for
Johnson contends that if Johnson's prior sentence were
found to be invalid and he was resentenced, the over served
or “banked” amount of prison time would be
credited to any prison time imposed if Johnson ever violates
a condition of his supervised release, relying on 18 U.S.C.
§ 3585(b)(1) (providing that a defendant shall be given
credit for time spent in “official detention”
prior to sentencing as a result of the crime for which the
sentence was imposed). Some courts have sought to prevent
such a result by not conducting a de novo resentencing, but
merely entering an amended judgment reducing the sentence to
time served. See United States v. Lee, Cr. No.
12-00133JMS(02), Civ. No. 16-00070 JMS-KJM, 2016 WL 4179292,
at *2 (D. Haw. Aug. 4, 2016). In any event, I do not find
that Johnson's motion is moot. See United States v.
Whitmire, No. 16-6369, 2016 WL 5389295, at *1 (4th Cir.
Sept. 27, 2016) (unpublished) (remanding § 2255 motion
on the ground that “it is not reasonably certain from
the record that adverse collateral consequences will not flow
from [defendant's] designation as an armed career
 Johnson had been convicted of numerous
other crimes, including the burglary of the State Line
Grocery in Lee County, Virginia, that occurred on July 16,
2002. I have previously held that conviction of a Virginia
burglary does not constitute a predicate under the enumerated
crime clause of the ACCA because the Virginia burglary
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 *3 (W.D. Va. Oct. 7, 2016) (quoting Mathis v.
United States, 136 S.Ct. 2243, 2248 (2016)), appeal
docketed, No. 16-7553 (4th Cir. Nov. 7, 2016)).