United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Edward Prince, by counsel, filed this 28 U.S.C. § 2255
Motion seeking relief based upon Johnson v. United
States, 135 S.Ct. 2551 (2015) . The Government has
responded and agrees with Prince that his § 2255 Motion
should be granted and that Prince should be resentenced. (ECF
No. 50.) Prince has replied, agreeing that the Court should
schedule a resentencing hearing as soon as possible. (ECF No.
51.) For the reasons that follow, the § 2255 Motion (ECF
Nos. 35, 36)will be granted.
Court found Prince guilty of possession of a firearm and
ammunition by a convicted felon. (J. 1, ECF No. 24.) As noted
by the Supreme Court,
Federal law forbids certain people-such as convicted felons,
persons committed to mental institutions, and drug users-to
ship, possess, and receive firearms. § 922(g). In
general, the law punishes violation[s] of this ban by up to
10 years' imprisonment. §924 (a) (2). But if the
violator has three or more earlier convictions for a
"serious drug offense" or a "violent felony,
" the Armed Career Criminal Act increases his prison
term to a minimum of 15 years and a maximum of life. §
Johnson, 135 S.Ct. at 2555 (citations omitted). At
sentencing, it was determined that Prince had at least three
prior convictions that qualified as violent felonies.
(Pre-Sentence Investigation Report ("PSR") ¶
41.) Specifically, Prince was previously convicted of seven
charges of statutory burglary in the City of Petersburg,
Virginia. (Id. ¶¶ 25, 28.)
Armed Career Criminal Act ("ACCA") defines a
violent felony as: "any crime punishable by imprisonment
for a term exceeding one year" and "(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 presents a serious
potential risk of physical injury to another." 18
U.S.C. § 924(e)(2)(B) (emphasis added). "The
closing words of this definition, italicized above, have come
to be known as the Act's residual clause."
Johnson, 135 S.Ct. at 2556. In Johnson, the
Supreme Court held that the residual clause of the ACCA is
unconstitutionally vague. Id. at 2557.
Government states that:
Seven of [Prince's prior] convictions were for [Virginia]
statutory burglary. At the time of sentencing on February 13,
2009, those burglary convictions constituted "violent
felonies" under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). Accordingly, defendant received an enhanced
sentence of 180 months. Without that designation, the
statutory maximum for his current offense would have been 120
months. In Castendet-Lewis v. Sessions, __ F.3d __,
2017 WL 1476649 (4th Cir. Apr. 25, 2017), the Fourth Circuit
revised the approach to statutory burglary under the ACCA.
After previously treating Virginia burglary as a divisible
offense, with a divisible portion falling within generic
burglary, see, e.g., United States v.
Foster, 662 F.3d 291 (4th Cir. 2011), reh'g
denied, 674 F.3d 391 (4th Cir. 2012), the Fourth Circuit
held in Castendet-Lewis that Virginia statutory
burglary under Va. Code § 18.2-91 is not divisible. The
Fourth Circuit's opinion in Castendet-Lewis
concluded that Foster "does not survive the
Supreme Court's decision in" Mathis v. United
States, 136 S.Ct. 2243 (2016). Castendet-Lewis,
2017 WL 1476649 at *7.
In United States v. Winston, 850 F.3d 677 (4th Cir.
2017), the Fourth Circuit held that a defendant did satisfy
the statute of limitations and the limitation on successive
§ 2255s by filing within one year of the Supreme
Court's opinion invalidating the Armed Career Criminal
Act's residual clause in Johnson v. United
States, 135 S.Ct. 2551 (2015), because the
defendant's prior conviction may have been
classified as a violent felony under the residual clause.
The district court in Winston concluded that a
defendant could obtain relief for a successive § 2255
(and have a timely § 2255) within one year of
Johnson because it was unclear in
Winston whether the residual clause was used. Thus,
the district court concluded that "courts have held
that-when unclear on which ACCA clause the sentencing judge
rested a predicate conviction-the petitioner's burden is
to show only that the sentencing judge may have used the
residual clause." United States v. Winston, __
F.Supp.3d __, 2016 WL 49440211, *6 (W.D. Va. Sept. 16, 2016).
The Fourth Circuit affirmed that ruling.
In many cases, the record will make clear that a
defendant's prior burglary conviction was classified as a
violent felony under the ACCA's enumerated offense of
burglary. In that situation, a defendant whose conviction has
been final for more than a year could not obtain relief under
Mathis or Castendet-Lewis . But as long as
Winston remains binding in the Fourth Circuit, the
statute of limitations could be satisfied if the residual
clause may have been used. At present, the United States
cannot establish that the defendant's prior convictions
were classified as violent felonies under the enumerated
offense of burglary. Thus, under Winston, the
defendant can satisfy the statute of limitations, and under
Castendet-Lewis, he is entitled to a resentencing.
This Court should therefore schedule a resentencing in this
(Gov't's Supp. Resp. 1-6, ECF No. 50 (footnote
light of the foregoing circumstances, Prince's §
2255 Motion (ECF Nos. 35, 36) will be granted. The
Government's Motion to Hold in Abeyance (ECF No. 40) and
Prince's Motion for an Expedited Ruling (ECF No. 47) will
be denied as moot. The matter will be set for a prompt
resentencing. The Government will be directed to obtain from
the Bureau of Prisons documentation of the amount of