United States District Court, W.D. Virginia, Big Stone Gap Division
B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, and Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for United States; Nancy C.
Dickenson, Assistant Federal Public Defender, Abingdon,
Virginia, and Christine Madeleine Lee, Assistant Federal
Public Defendant for Appellate Litigation, Roanoke, Virginia,
P. Jones United States District Judge.
defendant, John Joel Foster, has filed a Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255, challenging his 180-month sentence imposed by this
court under the Armed Career Criminal Act. His motion is
based upon the holding of the Supreme Court in Johnson v.
United States, 135 S.Ct. 2551 (2015). The United States
has filed a Motion to Dismiss and the issues have been fully
briefed and orally argued. After reviewing the record and
considering the arguments of the parties, I will deny the
United States' Motion to Dismiss and grant the Motion to
Vacate, Set Aside, or Correct Sentence.
November 3, 2009, Foster was charged by a grand jury of this
court in a one-count Indictment alleging that Foster had
possessed a firearm after having been convicted of a felony,
in violation of 18 U.S.C. § 922(g)(1), and that he was
subject to an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
The facts showed that after Foster had been stopped for
speeding, a bolt-action hunting rifle had been found by the
police in Foster's truck. Foster, then 39 years old, had
been convicted of three felonies when he was 19, after he and
two other individuals had broken into three separate local
businesses at night and had stolen cash, cigarettes and beer,
among other things. Foster admitted his guilt and was placed
on probation for those crimes and thereafter had no other
serious criminal history. Foster had a family and a regular
pleaded not guilty to the federal charge and proceeded to a
jury trial that took place on March 4, 2010. The jury found
Foster guilty as charged.
Presentence Investigation Report (“PSR”)
indicated he was subject to a 15-year mandatory minimum
sentence pursuant to the ACCA. The predicate offenses, as
outlined in the PSR, were the three prior Virginia burglary
convictions 20 years earlier. At the sentencing hearing on
July 26, 2010, Foster objected to his classification as an
armed career criminal. Foster argued that the government had
failed to present sufficient evidence using the modified
categorical approach to show that the three businesses
burglarized were within buildings or structures, a
requirement for a predicate burglary under the ACCA.
Following argument, I agreed that the government had failed
to show that Foster's burglaries of the Sunrise-Sunset
Restaurant and the Corner Market were of buildings or
structures, in the absence of any indication in the charging
documents that the businesses were conducted in buildings or
structures. United States v. Foster, 732 F.Supp.2d
649, 652-53 (W.D. Va. 2010). However, I concluded that
Foster's conviction for a third burglary, involving a
blacksmith business, met the requirements for a predicate
offense, based on the word “shop” used in the
indictment for that charge. Id. at 652. On August
31, 2010, I sentenced Foster to 27 months in prison.
government appealed the sentence to the United States Court
of Appeals for the Fourth Circuit. A majority of a panel of
the court of appeals ruled that Foster's convictions of
the burglaries of the Sunrise-Sunset Restaurant and the
Corner Market did qualify as predicate offenses and thus it
vacated Foster's sentence and remanded for resentencing
under the ACCA. United States v. Foster, 662 F.3d
291 (4th Cir. 2011). Foster requested a rehearing en banc,
which the court of appeals denied on a seven-to-seven tie
vote. United States v. Foster, 674 F.3d 391 (4th
Cir. 2012). The Supreme Court denied certiorari. Foster
v. United States, 133 S.Ct. 207 (2012).
remand, I resentenced Foster to the required 180 months of
imprisonment under the ACCA. Foster appealed his sentence to
the Fourth Circuit, again arguing that his prior convictions
were not predicates for the purposes of the ACCA. The Fourth
Circuit affirmed. United States v. Foster, 526
F.App'x 268, 270 (4th Cir. 2013) (unpublished).
Thereafter, Foster filed a § 2255 motion attacking his
conviction and sentence on various grounds, including
ineffective assistance of counsel. The motion was denied.
United States v. Foster, No. 2:09CR00017, 2015 WL
2238924 (W.D. Va. May 12, 2015).
24, 2016, the court of appeals granted leave to Foster to
file a successive § 2255 motion, finding that he had
made a prima facie showing that the new rule of
constitutional law announced in Johnson, held to be
retroactively to cases on collateral review by Welsh v.
United States, 136 S.Ct. 1257 (2016), may apply to his
case. Order, No. 16-9126 (4th Cir. June 24, 2016), ECF No.
148. The present § 2255 motion was filed that same day
in this court.
contends that the Supreme Court's decision in
Johnson, involving the residual clause of the ACCA,
applies to invalidate his sentence. Prior to
Johnson, the term “violent felony” was
defined in the ACCA as
any 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 presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The first clause is referred
to as the “force clause.” The first portion of
the second clause is known as the “enumerated crime
clause.” The second portion of that clause (“or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”) is called the
“residual clause” and was found to be
unconstitutionally vague by John ...