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United States v. Painter

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

January 6, 2017

UNITED STATES OF AMERICA,
v.
TIMOTHY WAYNE PAINTER, Petitioner.

          MEMORANDUM OPINION

          Michael F. Urbanski, United States District Judge

         Petitioner Timothy Wayne Painter brings this habeas corpus petition pursuant to 28 U.S.C. § 2255, arguing that his sentence under the Armed Career Criminal Act ("ACCA") is unconstitutional in light of Johnson v. United States. 135 S.Ct. 2551 (2015). ECF No. 199. Specifically, Painter argues that his Virginia assault and battery conviction referenced in paragraph 70 of the Presentence Investigation Report ("PSR"), ECF No. 148, at 16, no longer qualifies as a violent felony under the ACCA, leaving him without three predicate convictions needed to invoke 18 U.S.C. § 924(e)'s 180-month mandatory minimum sentence. The government agrees. ECF No. 208. The court concurs that Painter's ACCA-enhanced sentence is unlawful in light of Johnson. Therefore, the court will GRANT Painter's habeas motion and resentence him as set forth below.

         I.

         Pursuant to a written plea agreement, Painter entered a plea of guilty to three counts of the superseding indictment in this case:

Count 1: conspiracy to possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 846;
Count 4: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and
Count 6: possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).

         Following a sentencing hearing, a criminal judgment was entered on March 25, 2010, sentencing Painter to a total of 195 months incarceration-135 months as to Counts 1 and 6, to be served concurrendy, and 60 months as to Count 4 to be served consecutively. ECF No. 144.

         Because the court determined that Painter had three or more qualified convictions under the ACCA, he was subject to 18 U.S.C. § 924(e)'s mandatory minimum sentence of 180 months on Count 6, rather than the 120-month maximum sentence otherwise authori2ed under § 924(a)(2). The PSR identifies three qualifying predicate convictions subjecting Painter to the ACCA enhancement: distribution of cocaine (paragraph 59), abduction and breaking and entering with intent to abduct (paragraph 63), assault and battery - 3rd offense (paragraph 70). ECF No. 148. Counts 1 and 6 were grouped together for purposes of the guidelines computation, and the court calculated Painter's sentencing guideline range as 188 to 235 months.

         However, Painter received the benefit of a substantial assistance motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), which allowed the sentencing court to sentence him below the required statutory minimum sentence otherwise found to apply. ECF No. 128. Accordingly, the court sentenced Painter to 135 months on Count 1 and 135 months on Count 6 (below the 180-month minimum for Count 6 required under § 924(e)), to run concurrently, and 60 months on Count 4 to run consecutively.

         The issue raised in Painter's § 2255 petition is whether, following the decisions of the United States Supreme Court in Johnson v. United States. 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 125 (2016), his ACCA enhancement for his prior conviction for assault and battery remains lawful.

         II.

         Under 28 U.S.C. § 2255, a federal inmate may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief where "the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a). If the court determines the sentence was unlawfully imposed, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

         A convicted felon found guilty of possessing a firearm faces a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). However, the ACCA provides for a mandatory minimum sentence of 180 months when a defendant was previously convicted of at least three prior serious drug ...


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