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United States v. Wampler

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

March 3, 2017

UNITED STATES OF AMERICA,
v.
CECIL EDWARD WAMPLER, JR., Defendant. Civil Action No. 1:16CV80974

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         Defendant Cecil Edward Wampler, Jr., through counsel, has filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. He argues that following Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), is unlawful, because he no longer has the requisite number of convictions to support an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The government has moved to dismiss, and counsel for Wampler has responded.

         This case has been held in abeyance pending decisions by the United States Court of Appeals for the Fourth Circuit in United States v. Lamar Lee, No. 15-6099, and United States v. Winston, No. 16-7252. Following this court's decision in United States v. Brown, 7:12-cr-00026, 2017 WL 76932, 2017 U.S. Dist. LEXIS 1815 (W.D. Va. Jan 6, 2017), defense counsel moved to vacate the abeyance orders and expedite review. The court finds it appropriate to do so, will grant Wampler's § 2255 motion, and deny the government's motion to dismiss.

         I.

         On September 21, 2004, a federal grand jury charged Wampler and two codefendants in a nine-count superseding indictment with various weapons and methamphetamine-related crimes. Wampler pleaded guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute and distribute 50 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) ("Count One"); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count Six"); and 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), 922(g)(3) and 924(e) ("Count Eight").

         The Presentence Investigation Report ("PSR"), prepared in anticipation of sentencing, grouped Counts One and Eight, as required under United States Sentencing Guideline ("U.S.S.G.") § 3D1.2(b). Accordingly, the PSR recommended a total offense level of 33 for Counts One and Eight, in accordance with U.S.S.G. § 4B1.4(b)(3), because Wampler qualified as an armed career criminal under the ACCA, 18 U.S.C. §§ 922(g) and 924(e). PSR ¶ 39, ECF No. 194. Without the armed career criminal designation, Wampler's total offense level would have been 26. Id. ¶ 36. The PSR listed the following prior felony convictions to support the ACCA enhancement: (1) a 1985 Virginia unlawful wounding conviction; (2) a 1992 Virginia burglary conviction; and (3) a 1998 Virginia manufacturing of marijuana conviction. Id. ¶¶ 44, 45, 46. The PSR recommended a criminal history category of IV, resulting in a guideline imprisonment range of 188 to 235 months on Counts One and Eight, and a consecutive sentence of 60 months to life imprisonment on Count Six. Id. ¶¶ 71, 72.

         The court adopted the PSR recommendation and sentenced Wampler to a total of 248 months' incarceration: 188 months as to Counts One and Eight, to be served concurrently, and 60 months as to Count Six, to be served consecutive to the sentence imposed on Counts One and Eight. Judgment 2, ECF No. 117.

         Wampler did not appeal. On January 14, 2008, he filed a § 2255 petition, asserting various claims of ineffective assistance of counsel. The court dismissed the motion as untimely and denied a motion for reconsideration. Order at 1, ECF No. 126; Order at 1, ECF No. 134. Wampler appealed the court's order dismissing his § 2255 motion, but the Fourth Circuit affirmed. United States v. Wampler. 296 F.App'x 354 (4th Cir. 2008). In November 2008, Wampler filed a motion to withdraw his guilty plea, which the court construed as a successive § 2255 motion, and dismissed. Wampler filed a § 2255 petition again attempting to withdraw his guilty plea, which the court dismissed as successive and the Fourth Circuit affirmed. United States v. Wampler, 361 F.App'x 490 (4th Cir. 2010). Wampler filed a motion to reconsider, which was denied. Order at 1, ECF No. 172. On August 7, 2013, Wampler filed another § 2255 petition, arguing that his predicate offense of burglary no longer qualified as an ACC A predicate following the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013). § 2255 motion at 1, ECF No. 186. The court construed it as a successive petition, and dismissed it. Mem. Op. at 2, ECF No. 184. Following the Supreme Court's decision in Johnson, 135 S.Ct. 2551, he filed another § 2255 motion challenging his armed career criminal designation, which was again dismissed as successive. Mem. Op. at 2, ECF No. 191. Wampler requested permission from the Fourth Circuit to file a successive petition, which was also denied. Notice, ECF No. 195.

         Pursuant to Standing Order 2015-5, the court appointed the Federal Public Defender's Office to represent Wampler with regard to any Johnson claims that he might have. On June 13, 2016, the Fourth Circuit granted Wampler permission to file a successive § 2255 motion under Johnson, and defense counsel filed the current motion.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Petitioners bear the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A. Timeliness of Petition

         A petition under § 2255 must adhere to strict statute of limitations requirements. Generally, a petitioner must file a § 2255 motion within one year from the date on which his judgment of conviction became final. 28 U.S.C. § 2255(f)(1). However, the statute allows for an additional one-year limitations period from the date on which the Supreme Court recognizes a new right made retroactively applicable On collateral review. IcL at § 2255(f)(3).

         Wampler filed his § 2255 motion on June 13, 2016, more than one year from the date of his final judgment in 2005. Accordingly, his motion is untimely under § 2255(f)(1). Nonetheless, his petition is timely under § 2255(f)(3), because he filed it within one year of the Supreme Court's decision in Johnson, 135 S.Ct. 2551, which issued on June 26, 2015. Brown. 2017 WL 76932, *2 (concluding that petitioners who were sentenced as armed career criminals based, at least in part, on ...


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