Argued: October 27, 2016
from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:01-cr-00079-NKM-RSB-1;
M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant.
Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Roanoke, Virginia, for Appellant.
P. Fishwick, Jr., United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Vacated and remanded by published opinion. Judge Keenan wrote
the opinion, in which Judge Shedd and Senior Judge Davis
SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit
BARBARA MILANO KEENAN, Circuit Judge.
Winston was convicted in 2002 on a federal firearm charge and
was sentenced to serve a term of 275 months'
imprisonment. His sentence included an enhancement under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),
based in part on his prior conviction for the Virginia crime
of common law robbery (Virginia common law robbery) as a
qualifying predicate "violent felony." Winston
filed a motion under 28 U.S.C. § 2255 for
post-conviction relief, contending that his robbery
conviction no longer qualified as a predicate offense under
the ACCA after the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015)
(Johnson II), which invalidated a portion of the
ACCA's definition of "violent felony."
district court denied Winston's motion, concluding that
Virginia common law robbery continues to qualify as a violent
felony because the crime has as an element the "use,
attempted use, or threatened use of physical force against
the person of another." 18 U.S.C. §
924(e)(2)(B)(i). The court also rejected the government's
argument that Winston was barred from obtaining
post-conviction relief on procedural grounds.
our review, we agree with the district court's rejection
of the government's procedural arguments, because Winston
sufficiently has shown that he relied on a new rule of
constitutional law. However, we disagree with the district
court's substantive conclusion and hold that
Winston's conviction for Virginia common law robbery does
not constitute a violent felony under the ACCA, because the
full range of conduct covered by the Virginia crime does not
necessarily include the use of "force capable of causing
physical pain or injury to another person." See
Johnson v. United States, 559 U.S. 133, 140 (2010)
(Johnson I). We therefore vacate the judgment of the
district court, and remand the case for further proceedings.
2002, Winston was convicted of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). In
determining Winston's sentence, the district court
concluded that Winston qualified as an armed career criminal
under the ACCA, 18 U.S.C. § 924(e), which mandates a
fifteen-year minimum sentence for defendants convicted of a
firearm offense who have three or more prior convictions for
violent felonies or serious drug offenses. Without these
predicate convictions, Winston would not have qualified as an
armed career criminal and would have been subject to a
ten-year maximum sentence. See 18 U.S.C. 924(a)(2).
ACCA defines the term "violent felony" as any crime
punishable by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another (the
force clause); or
(ii) is burglary, arson, or extortion, involves use of
explosives (enumerated crimes clause), or otherwise involves
conduct that presents a serious potential risk of ...