United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Lawrence McCutcheon III, 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
moved to dismiss, and to hold the case in partial 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, and so the court will vacate the stay order
and expedite consideration of the case. After careful review
of the record, and in light of Winston, the court
will grant McCutcheon's § 2255 motion, and deny the
government's motion to dismiss.
October 19, 2006, a federal grand jury indicted McCutcheon
for: (1) being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1)
("Count One"); possessing unlawfully a stolen
firearm, in violation of 18 U.S.C. §§ 922(j) and
924(a)(2) ("Count Two"); and stealing a firearm
from a licensed firearm dealer; in violation of 18 U.S.C.
§§ 922(u) and 924(i)(1) ("Count Three").
McCutcheon pleaded guilty, pursuant to a written plea
agreement, to Count One.
Presentence Report ("PSR"), prepared in
anticipation of sentencing, recommended a total offense level
of 30 because McCutcheon qualified as an armed career
criminal under the ACCA, 18 U.S.C. §§ 922(g) and
924(e). PSR ¶¶ 20, 22, ECF No. 68. Without the
armed career criminal designation, McCutcheon's total
offense level would have been 23. Id. ¶ 19. The
PSR listed the following prior felony convictions to support
the ACCA enhancement: two 1986 convictions for Maryland
storehouse breaking; a 1993 Virginia conviction for breaking
and entering; and a 1994 conviction for six counts of
Virginia robbery, hi ¶¶ 30, 31, 34, 35. The PSR
recommended a criminal history category of IV, resulting in a
guideline imprisonment range of 135 to 168 months.
Id. ¶ 76. However, because the ACCA statutory
mandatory minimum was 180 months, his advisory guideline
range became 180 months. Id. ¶ 77.
court adopted the PSR recommendation, and sentenced
McCutcheon to a total of 180 months' incarceration
because .he qualified as an armed career criminal. Sent.
Hr'g Tr. at 20-21, ECF No. 27. McCutcheon did not appeal.
On January 16, 2008, he filed a § 2255 motion, arguing
that counsel was ineffective for failing to appeal and to
challenge his status as an armed career criminal. After an
evidentiary hearing, the district court dismissed
McCutcheon's motion. Order at 1, ECF No. 69. McCutcheon
appealed, and the Fourth Circuit dismissed. United States
v. McCutcheon. 353 F.App'x 812, 813 (4th Cir. 2009)
September 8, 2015, pursuant to Standing Order 2015-5, the
court appointed the Federal Public Defender's Office to
represent McCutcheon with regard to any Johnson
claims that he might have. On June 20, 2016, he filed a pro
se § 2255 motion requesting relief under
Johnson. Motion at 1, ECF No. 105. This motion was
dismissed as he had not received authorization to file a
successive petition. On June 24, 2016, the Fourth Circuit
granted McCutcheon permission to file a successive petition,
ECF No. 108, and he filed, through counsel, a § 2255
petition asserting that his Virginia robbery and Maryland
storehouse breaking convictions can no longer be used to
support his ACCA sentence following Johnson, ECF No.
state a viable claim for relief in a successive § 2255
motion, a petitioner must establish that he is entitled to
relief based on "a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable." 28 U.S.C.
§ 2255(h)(2). McCutcheon 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 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 United States Supreme Court invalidated
part of the definition of "violent felony" under
the ACCA. 135 S.Ct. at 2563. The ACCA defines a "violent
[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 ...