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United States v. McCain

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

June 8, 2017

UNITED STATES OF AMERICA
v.
WILLIE JUNIOR MCCAIN, Petitioner.

MEMORANDUM OPINION

          JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner Willie Junior McCain, a federal inmate, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, challenging his 250-month sentence following a guilty plea. McCain asserts that he no longer qualifies as an armed career criminal under the Armed Career Criminal Act (“ACCA”) because his predicate convictions no longer support such a designation. The government filed a motion to dismiss, and the time within which McCain had to respond has expired, making this matter ripe for disposition. After careful review of the record, and in light of Johnson v. United States, 135 S.Ct. 2551 (2015), the court will grant McCain's § 2255 motion, ECF No. 90, and deny the government's motion to dismiss, ECF No. 98.

         I.

         On April 7, 2005, McCain was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e). McCain pleaded guilty pursuant to an oral plea agreement. ECF No. 35.

         A Presentence Investigation Report (“PSR”) was created prior to sentencing. It recommended that McCain be designated an armed career criminal based on three prior North Carolina convictions: common law robbery, breaking and entering and robbery with a dangerous weapon. PSR ¶ 22, 23 and 26, ECF No. 88. Because of this designation, he had a total offense level of 32 and a criminal history category of VI, resulting in a sentencing range of 210 to 262 months' incarceration. Id. ¶ 60. Without the armed career criminal enhancement, McCain would have faced a statutory maximum of ten years' incarceration. I adopted the PSR and sentenced McCain to 250 months' imprisonment. Judgment at 2, ECF No. 39. McCain did not appeal. Following his conviction, he filed numerous § 2255 motions, ECF Nos. 57, 63, 73, 84, all of which were dismissed, ECF Nos. 59, 65, 75, 86. Prior to filing his most recent § 2255 motion, McCain received authorization from the United States Court of Appeals for the Fourth Circuit to file a successive petition. Notice at 1, ECF No. 89.

         In this § 2255 motion, McCain alleges that following the Supreme Court's ruling in Johnson, his North Carolina predicate convictions can no longer support his enhanced sentence under the ACCA. The court appointed the Federal Public Defender's Office to represent McCain, although it declined to provide supplemental briefing. Notice of Non-filing, ECF No. 93.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was “imposed in violation of the Constitution or laws of the United States;” (2) that “the court was without jurisdiction to impose such a sentence;” or (3) that “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). When a petitioner already has filed a § 2255 motion, he may obtain relief in a second or subsequent petition by establishing that “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, ” invalidates his sentence. Id. § 2255(h). McCain bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         III.

         A. The ACCA Enhanced Sentence Structure

         McCain challenges the viability of the predicate offenses used to support his status as an armed career criminal. Federal law prohibits convicted felons from possessing firearms. 18 U.S.C. § 922(g). Defendants who violate this law are subject to a term of up to ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, when defendants convicted of a § 922(g) charge have three or more prior convictions for “serious drug offenses” or “violent felonies, ” they qualify as armed career criminals under the ACCA. Armed career criminals face an increased punishment: a statutory mandatory minimum of fifteen years' imprisonment and a maximum of life. 18 U.S.C. § 924(e)(1).

         In Johnson, the Supreme Court invalidated part of the definition of “violent felony” under the ACCA. 135 S.Ct. at 2563. The ACCA defines a “violent felony” 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 ...

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