United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski, United States District Judge
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.
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. §
Count 6: possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g).
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.
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.
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.
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.
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. §
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 ...