United States District Court, W.D. Virginia, Abingdon Division
Glen E. Conrad Chief United States District Judge
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.
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.
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").
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.
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.
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.
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.
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).
Timeliness of Petition
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).
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 ...