United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Michael Eugene Payne, through counsel, has filed a motion to
vacate, set aside or correct sentence under 28 U.S.C. §
2255. He argues that following the decision in 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
moved to dismiss, and to hold the case in abeyance pending
the decision by the United States Court of Appeals for the
Fourth Circuit in United States v. Winston, No.
16-7252. The Fourth Circuit has now decided Winston,
No. 16-7252, 2017 WL 977031, 2017 U.S. App. LEXIS 4374 (4th
Cir. March 13, 2017), and so the court will vacate the stay
order and expedite review. After careful review of the record, and
in light of Winston, the court will grant
Payne's § 2255 motion, and deny the government's
motion to dismiss.
September 5, 2013, a federal grand jury indicted Payne for:
(1) possessing with intent to distribute a measurable
quantity of a mixture or substance containing a detectable
amount of heroin, in violation of 21 U.S.C. §§
841(a)(1) and (B)(1)(C) ("Count One"); (2)
possessing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) ("Count
Two"); and (3) being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)
("Count Three"). Payne pleaded guilty, pursuant to
a written plea agreement, to Count Three.
Presentence Investigation Report ("PSR"), prepared
in anticipation of sentencing, recommended a total offense
level of 31 because Payne qualified as an armed career
criminal under the ACCA, 18 U.S.C. §§ 922(g) and
924(e). PSR ¶¶ 16, 19, ECF No. 48. Without the
armed career criminal designation, Payne's total offense
level would have been 15. Id. ¶ 15. The PSR
listed the following prior felony convictions to support the
ACCA enhancement: two 1974 convictions for Virginia malicious
wounding, five 1974 counts of Virginia robbery, and one 1987
conviction for Virginia statutory burglary, hi ¶¶
21-23, 25. The PSR recommended a criminal history category of
VI, resulting in a guideline imprisonment range of 188 to 235
months. Id. ¶49.
court adopted the PSR recommendation, but sentenced Payne to
a total of 90 months' incarceration following a motion
from the government for a reduced sentence based on
substantial assistance, 18 U.S.C. § 3553(e). Statement
of Reasons at 1, ECF No. 47. Payne did not appeal. On
September 8, 2015, pursuant to Standing Order 2015-5, the
court appointed the Federal Public Defender's Office to
represent Payne with regard to any Johnson claims
that he might have. On June 26, 2016, he filed, through
counsel, a § 2255 petition asserting that his burglary,
robbery and malicious wounding convictions can no longer
serve as predicate offenses under the ACCA.
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). Payne bears 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).
The ACCA Enhanced Sentence Structure
challenges the viability of all of the predicate offenses
used to support his status as an armed career criminal.
Federal law prohibits convicted felons from possessing
firearms. 18 U.S.C. § 922(g). Defendants who violate
this law are subject to a term of up to ten years'
imprisonment. 18 U.S.C. § 924(a)(2). However, when
defendants convicted of a § 922(g) charge have three or
more prior convictions for "serious drug offenses"
or "violent felonies, " they qualify as armed
career criminals under the ACCA. Armed career criminals face
an increased punishment: a statutory mandatory minimum of
fifteen years' imprisonment and a maximum of life. 18
U.S.C. § 924(e)(1).
Johnson, the Supreme Court invalidated part of the definition
of "violent felony" under the ACCA. 135 S.Ct. at
2563. The ACCA defines a "violent felony" as:
[A]ny 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 the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...