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United States v. King

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

March 20, 2017

UNITED STATES OF AMERICA,
v.
MARTIN ALVIN KING, Petitioner.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Petitioner Martin Alvin King 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. 63. The government agrees. For the reasons set forth below, the court will GRANT King's habeas petition and resentence him to a total period of incarceration of 42 months, to be followed by a three-year term of supervised release, by agreement of the parties.

         I.

         Pursuant to a written plea agreement, King entered a plea of guilty to both counts of the indictment in this case:

         Count 2: possession of a stolen firearm, in violation of 18 U.S.C. § 9220.

         Following a sentencing hearing, a criminal judgment was entered on September 17, 2013, sentencing King to a total of 180 months incarceration-180 months on Count 1 and 120 months on Count 2, to be served concurrently. The judgment also notes: "However, should the case be remanded for resentencing then the alternative sentence or 120 months would be imposed." ECF No. 53. The sentencing judge imposed a term of supervised release of three years on each count, to run concurrently.

         Because the court determined that King had three or more qualifying convictions under the ACCA, [1] he was subject to 18 U.S.C. § 924(e)'s mandatory minimum sentence of 180 months on Count 1, rather than the 120-month maximum sentence otherwise authorized under § 924(a)(2). The PSR identifies four qualifying predicate convictions subjecting King to the ACCA enhancement: three convictions for Alabama third-degree burglary (paragraphs 29, 30, 31), and one conviction for Virginia statutory burglary (paragraph 36). ECF No. 55. Counts 1 and 2 were grouped together for purposes of the guidelines computation, and the court calculated King's sentencing guideline range as 188 to 235 months. ECF No. 54.

         King later received the benefit of motion for substantial assistance pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure, which allowed the sentencing court to reduce King's sentence below the required statutory minimum sentence previously imposed. ECF No. 59. Accordingly, the court entered an amended judgment on June 9, 2014, reducing King's sentence from a total term of 180 months to a total term of 120 months incarceration. ECF No. 60. The amended judgment notes that all other terms and conditions of the defendant's original sentence were to remain the same.

         The issue raised in King'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 burglary convictions remains lawful. Counsel appeared before the court for a hearing on December 8, 2016, at which King was present via video conference. Following this hearing, King filed a motion to vacate the court's briefing order, grant his petition, and resentence him to a period of 42 months in prison without the need for a further hearing. ECF No. 77. At the court's request following a telephone conference on January 13, 2017, the parties filed an agreed statement as to the appropriate sentence in King's case, in which they ask the court the resentence King to a total period of incarceration of 42 months, followed by a term of supervised release of three years. ECF No. 80.[2]

         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 offenses or violent felonies. Id. § 924(e)(1). A violent felony is defined as:

Any crime punishable by imprisonment for a term exceeding one year . . . that -
(i) has as an element the use, attempted use, or threatened use of physical force against die person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a ...

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