United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
§ 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.
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).
The ACCA Enhanced Sentence Structure
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).
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
[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 ...