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United States v. Fluker

United States District Court, W.D. Virginia

May 12, 2017

UNITED STATES OF AMERICA
v.
EDDIE DEAN FLUKER, Petitioner.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge.

         Petitioner Eddie Dean Fluker brings this habeas corpus petition pursuant to 28 U.S.C. § 2255, asking the court to vacate or correct his sentence in light of the United States Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). ECF Nos. 50, 57, and 78. The government moved to dismiss Fluker's § 2255 motion, ECF Nos. 67 and 81, and Fluker responded. ECF Nos. 68 and 82. For the reasons that follow, the court will GRANT Fluker's § 2255 petition and DENY the United States' motion to dismiss.[1]

         I.

         On September 17, 1992, a criminal judgment[2] was entered sentencing Fluker to a term of 340 months of incarceration for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).[3] Because the court determined that Fluker had three or more qualifying convictions under the Armed Career Criminal Act (the "ACCA"), he 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 court calculated the sentencing guideline range as 360 months to life. Fluker also was convicted of possession with die intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B)(iii), and sentenced to a concurrent term of 340 months. Finally, Fluker was convicted of carrying a firearm in relation to a drug trafficking crime, and sentenced to a consecutive term of 60 months. Fluker's total term of imprisonment was 400 months. The criminal judgment stated that

[t]he Court finds that the defendant has a history of resisting arrest; that if his gun had not jammed, that the defendant would have shot the police officer involved in his arrest; and that the defendant was on parole for a violent felony (rape) at the time of the instant offense.

         ECF No. 83, at 4.

         The criminal judgment accepted the factual findings in the Presentence Investigation Report ("PSR"), which found Fluker to be subject to the enhanced penalty under § 924(e) based on convictions listed in PSR paragraphs 47, 48 and 51, consisting of 1977 and 1979 convictions for Georgia robbery and a 1984 conviction for Georgia rape. ECF No. 21. The criminal judgment reflects that the court overruled Fluker's objections to the presentence report. ECF No. 83, at 4. Fluker appealed his conviction, but his criminal judgment was affirmed on appeal. ECF No. 1, at 4.

         On June 21, 1996, Fluker filed his first motion to vacate his sentence under 28 U.S.C. § 2255. On March 28, 1997, the court denied Fluker's § 2255 petition, but granted a motion for sentence reduction under 18 U.S.C. § 3582(c)(2), reducing Fluker's concurrent sentence on his drug and felon in possession charges from 360 to 327 months, followed by the consecutive 60 month sentence on the § 924(c) charge.[4]

         Fluker subsequently filed a motion for authorization to file a second or successive § 2255 petition, which the Fourth Circuit Court of Appeals granted on May 5, 2016. ECF No. 49. Fluker's § 2255 petition was filed in the district court the same day. ECF No. 50.

         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:

[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 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").[5] Though often parsed into three clauses-the force clause, the enumerated clause, and die residual clause-§ 924(e)(2)(B) is comprised of two numbered subsections. See Begay v. United States. 553 U.S. 137, 142-44 (2008). Specifically, the first subsection states:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

18 U.S.C. § 924(e)(2)(B)(1) ("Subsection (i)"). The second subsection states:

(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)(ii) ("Subsection (ii)"). Subsection (ii) lists several specific "enumerated offense" crimes-burglary, arson, extortion, and use of explosives-that amount to violent felonies. The residual clause of subsection (ii) goes on to encompass any crime that "otherwise involves conduct that presents a serious potential risk of injury."

         Fluker's qualifying convictions, for Georgia robbery and rape, do not implicate the enumerated clause. Thus, the sole question in this case following Johnson II is whether violations of those Georgia statutes fall within § 924(e)(2)(B)(i)-the force clause of the ACCA.[6]

         III.

         On the merits, the government argues that the Georgia robbery statute is divisible, allowing the court to consider the state court indictments against Fluker. When those indictments are considered, the government contends that it is clear that Fluker was charged with robbery by force, thus implicating the force clause of the ACCA.

         In response, Fluker argues that physical force is not a necessary element of Georgia robbery, rendering the ACCA inapplicable. Fluker's argument has two components. First, Fluker argues that certain parts of the Georgia robbery statute, such as robbery "by sudden snatching, " do not contain an element of physical force. Second, even as to those parts of the statute that contemplate the use of physical force, Georgia law requires proof of only slight force, encompassing conduct far below the ACCA's threshold of violent force. Johnson I, 559 U.S. at 140 ("We think it clear that in the context of a statutory definition of ''viole ...


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