United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Order entered on June 24, 2016, the United States Court of
Appeals for the Fourth Circuit granted Giovanni 0. Cherry
permission to file a successive 28 U.S.C. § 2255 motion
in this Court. (ECF No. 60.) On June 30, 2016, Giovanni 0.
Cherry, appearing pro se, filed this 28 U.S.C.
§ 2255 Motion seeking relief based upon Johnson v.
United States, 135 S.Ct. 2551 (2015). (ECF No. 61.)
Specifically, Cherry contends that, in light of
Johnson, he was improperly sentenced as an Armed
Career Criminal and as a Career Offender under the Sentencing
Guidelines. The Government has responded and agrees with
Cherry that his § 2255 Motion should be granted with
respect to Cherry's challenge to his designation as an
Armed Career Criminal and that Cherry should be resentenced.
(ECF No. 67. J For the reasons that follow, the §
2255 Motion (ECF No. 61) will be granted.
Court found Cherry guilty of possession of a firearm by a
convicted felon. (J. 1, ECF No. 29.) As noted by the Supreme
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 Cherry had at least three
prior convictions that qualified as violent felonies.
(Pre-Sentence Investigation Report ("PSR") ¶
31.) Specifically, Cherry previously was convicted of seven
charges of statutory burglary and three charges of breaking
and entering. (Id. ¶¶ 22-23.)
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.
acknowledging that Cherry is entitled to relief, the
Government states that:
[Cherry] had ten prior convictions for [Virginia] statutory
burglary. At the time of sentencing on November 16, 2009,
those burglary convictions constituted "violent
felonies" under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). Accordingly, defendant faced a guideline range
of 188-235 months with a mandatory minimum sentence of 15
years. Without that designation, the statutory maximum for
his current offense would have been 120 months. The Court
granted the government's motion for an upward variance
and sentenced defendant to 293 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. 67.)
light of the foregoing circumstances, Cherry's §
2255 Motion (ECF No. 60) will be granted. The Clerk will be
directed to promptly appoint counsel for Cherry. 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 Cherry's good time credit ...