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United States v. McCutcheon

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

April 12, 2017

UNITED STATES OF AMERICA,
v.
LAWRENCE MCCUTCHEON III, Defendant. Civil Action No. 7:16CV81036

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         Defendant 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.

         I.

         On 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.

         The 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.

         The 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) (unpublished).

         On 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. 109.

         II.

         To 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).

         A. The ACCA Enhanced Sentence Structure

         McCutcheon 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).

         In 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 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 ...

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