United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States.
C. Dickenson, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
P. JONES, UNITED STATES DISTRICT JUDGE
defendant, Deborah Lynn Stevenson, has filed a motion
pursuant to 28 U.S.C. § 2255. I find that the United
States' Motion to Dismiss must be granted.
defendant was sentenced by this court on February 26, 2004,
after pleading guilty to possession of a firearm having been
convicted of a felony, in violation of 18 U.S.C. §§
922(g)(1) She was sentenced to 180 months imprisonment
pursuant to the Armed Career Criminal Act (the
“ACCA”), 18 U.S.C. § 924(e), to be followed
by five years supervised release.
2, 2016, Stevenson, by counsel, filed a motion pursuant to 28
U.S.C. § 2255, contending that her sentence under the
ACCA was invalid based upon the holding of the Supreme Court
in Johnson v. United States, 135 S.Ct.
2551. The United States has filed a Motion to
Dismiss, asserting that Stevenson's § 2255 motion is
without merit. The defendant has responded, making the matter
ripe for decision.
ACCA provides for an enhanced sentence if a defendant is
convicted of a firearm offense and “has three previous
convictions by any court . . . for a violent felony or a
serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. §
924(e)(1). 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 of the
statute is referred to as the “force” clause and
the first portion of the second clause is called the
“enumerated crimes clause.” The second portion of
the second 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 in
was sentenced under the ACCA based on her 23 prior
convictions of burglaries in Georgia in 2000. In her present
§ 2255 motion, she contends that the Georgia statute
under which she was convicted, Ga. Code Ann. § 16-7-1,
defined the crime broader than the generic burglary
established in Taylor v. United States, 495 U.S.
575, 598 (1990). Moreover, she argues that the elements of
the statute were not divisible under the test described in
Mathis v. United States, 136 S.Ct. 2243 (2016), thus
preventing the use of the modified categorical approach to
determine if her crimes in fact mirrored a generic burglary.
Eleventh Circuit has determined that the alternative
locational elements in the Georgia burglary statute in effect
at the time of Stevenson's prior convictions
were divisible. United States v. Gundy, 842
F.3d 1156, 1168 (11th Cir. 2016), petition for cert.
filed, No. 16-8617 (U.S. Apr. 6, 2017). Accordingly, the
court held that the appellant's prior Georgia burglary
convictions each constituted a violent felony under the
ACCA's enumerated crime clause. Id. at
the Eleventh Circuit's construction of the Georgia
burglary statute persuasive. Thus, even assuming that
Stevenson has standing to contest her ACCA sentence under
Johnson, see United States v. Winston, 850
F.3d 677, 682 (4th Cir. 2017) (holding that where a
defendant's ACCA sentence may have been predicated on
application of the residual clause, the defendant may rely on
Johnson's new rule of constitutional ...