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United States v. Payne

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

April 3, 2017

UNITED STATES OF AMERICA,
v.
MICHAEL EUGENE PAYNE, Defendant. Civil Action No. 7:16CV81070

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         Defendant 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.[1] 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.

         I.

         On 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.

         The 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.

         The 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.

         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). 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).

         A. The ACCA Enhanced Sentence Structure

         Payne 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).

         In 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 ...

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