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United States v. Farrow

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

April 13, 2017

UNITED STATES OF AMERICA,
v.
SHERWOOD FARROW, Defendant. Civil Action No. 7:16CV81148

          MEMORANDUM OPINION

          Hon. Glen E. Conrad, Chief United States District Judge

         Defendant 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 dismiss.

         I.

         On 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.

         The 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 months' incarceration.

         The PSR 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.

         The 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).

         On 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.

         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). 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. 1958).

         A. The ACCA Enhanced Sentence Structure

         Farrow 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).

         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 ...

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