United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad, Chief United States District Judge
Sherwood Farrow, 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 of the United
States Supreme Court 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. The court
held the case in abeyance pending a decision by the Supreme
Court in Beckles v. United States, 15-8544. The
Supreme Court has now decided that case, 137 S.Ct. 886
(2017), and so the court will vacate the stay order and
expedite review. After careful review of the record, and in
light of Johnson, the court will grant Farrow's
§ 2255 motion, and deny the government's motion to
October 20, 2005, a federal grand jury indicted Farrow in a
superseding indictment for: (1) conspiring to distribute and
possess with intent to distribute 50 grams or more of a
substance containing a detectable amount of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) ("Count
One"); (2) distributing or possessing with intent to
distribute five grams or more of a mixture or substance
containing a detectable amount of powder cocaine, in
violation of 21 U.S.C. § 841(a)(1) ("Counts Two,
Five, and Seven"); (3) distributing or possessing with
intent to distribute five grams or more of a mixture or
substance containing a detectable amount of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) ("Counts Four,
Six, and Eight"); (4) being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e) ("Count Nine"); (5) possessing a stolen
firearm, in violation of 18 U.S.C. § 922(j) ("Count
Eleven"); (6) using and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. §§ 924(c)(1)(A) and 2 ("Count
Thirteen"); and (7) maintaining a place for the purpose
of manufacturing, distributing, and/or using a mixture or
substance containing crack cocaine, in violation of 21 U.S.C.
§ 856(a)(1) ("Count Fourteen"). Farrow pleaded
guilty, pursuant to a written plea agreement, to Counts One
and Nine. Indictment at 2, ECF No. 51.
Presentence Investigation Report ("PSR"), prepared
in anticipation of sentencing, grouped Counts One and Nine,
as required under United States Sentencing Guideline J
("U.S.S.G.") § 3D1.2(c). The PSR designated
Farrow as a career offender under U.S.S.G § 4B1.1 and
calculated a total offense level of 34 for Counts One and
Nine based on that provision. PSR ¶ 26, ECF No. 75.
Farrow also qualified as an armed career criminal under the
ACCA, 18 U.S.C. §§ 922(g) and 924(e), which
increased the statutory mandatory minimum for Count Nine to
180 months' incarceration. Id., ¶ 70. Without the
armed career criminal designation, Farrow's statutory
maximum for Count Nine would have been capped at 120
listed the following prior felony convictions to support
Farrow's status as a career offender: a 1981 conviction
for Virginia robbery and a 1985 conviction for aggravated
sexual battery. Id. ¶¶ 33, 36. The PSR did
not specify the convictions used to support Farrow's ACCA
enhancement, but in addition to the convictions used to
support his career offender status, he had a 1975 conviction
for Virginia burglary and a 1976 conviction for five counts
of Virginia burglary. Id. ¶¶ 30, 32. The
PSR recommended a criminal history category of VI, resulting
in a guideline imprisonment range of 262 to 327 months.
Id. ¶ 71.
court adopted the PSR recommendation and sentenced Farrow to
a total of 262 months' incarceration on each count to run
concurrently. Judgment at 2, ECF No. 55. Farrow appealed,
challenging the validity of his guilty plea hearing and the
reasonableness of his sentence. The United States Court of
Appeals for the Fourth Circuit affirmed. United States v.
Farrow. No. 06-4615, 2006 U.S. App. LEXIS 32082 (4th
Cir. Dec. 29, 2006). Farrow then filed a § 2255 motion
on January 22, 2014, arguing that he received ineffective
assistance of counsel at sentencing and on direct appeal,
which this court dismissed as untimely. Order at 1, ECF No.
101. Farrow appealed but the Fourth Circuit dismissed his
petition. United States v. Farrow, 579 F.App'x
158 (4th Cir. 2014).
September 8, 2015, pursuant to Standing Order 2015-5, the
court appointed the Federal Public Defender's Office to
represent Farrow with regard to any Johnson claims
that he might have. On July 14, 2016, he received
authorization to file a successive § 2255 motion, and on
the same day, through counsel, filed a § 2255 petition
asserting that his burglary and robbery convictions can no
longer serve as predicate offenses under the ACCA.
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). Farrow 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.
The ACCA Enhanced Sentence Structure
challenges the viability 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"
[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 ...