United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Earnest Robert Baxter brings this habeas corpus petition
pursuant to 28 U.S.C. § 2255, arguing that his sentence
under the Armed Career Criminal Act ("ACCA") is
unconstitutional in light of Johnson v. United
States. 135 S.Ct. 2551 (2015). ECF No. 76. The
government agrees. For the reasons set forth below, the court
will GRANT Baxter's habeas petition and resentence him to
time served, to be followed by a three-year term of
supervised release, by agreement of the parties.
to a written plea agreement, Baxter entered a plea of guilty
to Count One of the indictment in this case, charging him
with being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). The court determined at sentencing that
Baxter had three or more qualifying convictions under the
ACCA and therefore was subject to 18 U.S.C. §
924(e)'s mandatory minimum sentence of 180 months, rather
than the 120-month maximum sentence otherwise authorized
under § 924(a)(2). The presentence report
("PSR") identifies three qualifying predicate
convictions subjecting Baxter to the ACCA enhancement: a 1974
breaking and entering conviction in Culpeper County
(paragraph 21 of the PSR), a 1976 statutory burglary
conviction in Roanoke City (paragraph 22), and two 1980
robbery convictions (arising out of the same incident) in
Roanoke County (paragraph 23). The court calculated
Baxter's sentencing guideline range as 188 to 235 months,
and, by judgment entered January 13, 2010, sentenced him to
180 months' incarceration followed by a term of
supervised release of 4 years.
issue raised in Baxter's § 2255 petition is whether,
following the decisions of the United States Supreme Court in
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Welch v. United States, 136 S.Ct. 125 (2016), his
ACCA enhancement remains lawful. The government moved to hold
Baxter's case in abeyance pending a decision from the
Fourth Circuit Court of Appeals in United States v.
Winston, No. 16-6978, as to whether Virginia robbery
qualifies as a violent felony under the ACCA's force
clause. The court held a scheduling conference on August 25,
2016, at which both parties agreed that the case should be
stayed pending Winston. The court entered an order
to that effect on August 29, 2016.
Fourth Circuit issued its opinion in Winston on
March 13, 2017, holding Virginia robbery does not constitute
a violent felony under the ACCA. 850 F.3d 677 (4th Cir.
2017). In light of this ruling, the government concedes that
Baxter is entitled to relief. ECF No. 88. The parties have
filed a joint statement regarding sentencing, in which they
submit that Baxter should be resentenced to time served, to
be followed by a three-year term of supervised release. ECF
28 U.S.C. § 2255, a federal inmate may move the
sentencing court to vacate, set aside, or correct the
prisoner's sentence. Courts may afford relief where
"the sentence was imposed in violation of the
Constitution or the laws of the United States."
Id. § 2255(a). If the court determines the
sentence was unlawfully imposed, the court "shall vacate
and set the judgment aside and shall discharge the prisoner
or resentence him or grant a new trial or correct the
sentence as may appear appropriate." Id. §
convicted felon found guilty of possessing a firearm faces a
maximum sentence of 120 months. 18 U.S.C. § 924(a)(2).
However, the ACCA provides for a mandatory minimum sentence
of 180 months when a defendant was previously convicted of at
least three prior serious drug offenses or violent felonies.
Id. § 924(e)(1). A violent felony is defined
Any 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 prcscnts a scrious
potential risk of physical injury to
Id. § 924(e)(2)(B) (strikeout added).
2015, the Supreme Court invalidated the language stricken
above after finding it void for vagueness. Johnson v.
United States,135 S.Ct. 2551 (2015) ("Johnson
II"). Though often parsed into three clauses-the
force clause, the enumerated clause, and the residual
clause-§ 924(e)(2)(B) is comprised of two numbered
subsections. See Begay v. ...