Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Baxter

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

April 21, 2017

UNITED STATES OF AMERICA
v.
EARNEST ROBERT BAXTER, Petitioner.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Petitioner 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.

         I.

         Pursuant 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).[1] 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).[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.

         The 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.

         The 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 No. 89.

         II.

         Under 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. § 2255(b).

         A 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 as:

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 another.

Id. § 924(e)(2)(B) (strikeout added).

         In 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").[3] 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.