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United States v. Mixson

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

June 23, 2017

UNITED STATES OF AMERICA,
v.
RONDALL CLYDE MIXSON, Defendant. Civil Action No 7:16CV81161

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Defendant Rondall Clyde Mixson, through counsel, has filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. He argues that following the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is unlawful because he no longer has the requisite number of convictions to support an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). After careful review of the record, and in light of recent precedent from the United States Supreme Court and the United States Court of Appeals for the Fourth Circuit, the court will grant the government's motion to dismiss Mixson's § 2255 motion.

         I.

         On. October 2, 2008, a federal grand jury indicted Mixson for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Mixson pleaded guilty, pursuant to a written plea agreement. Plea Agree, at 1, ECF No. 28.

         The Presentence Investigation Report ("PSR"), prepared in anticipation of sentencing, recommended a total offense level of 30 because Mixson qualified as an armed career criminal under the ACCA, 18 U.S.C. §§ 922(g) and 924(e). PSR ¶¶ 17, 19, ECF No. 92. The PSR listed the following prior felony convictions to support the ACCA enhancement: nine convictions for Virginia statutory burglary, ¶¶ 21, 22 (two counts), 23, 29, 30, 31, 38, and 39; two convictions for North Carolina breaking and entering ¶ 27 (two counts); and one conviction for conspiracy to distribute methamphetamine, ¶ 28. The PSR recommended a criminal history category of VI, resulting in a guideline imprisonment range of 188 to 235 months. Id. ¶ 49.

         The court adopted the PSR recommendation, and sentenced Mixson to a total of 180 months' incarceration, 60 months of which to be served concurrently with any state sentence he was serving, and the remaining 120 months to be served consecutive to state time. Judgment at 2, ECF No. 34. Mixson did not appeal. He filed a previous § 2255 motion, which was denied. ECF No. 41, 67.

         On July 26, 2016, Mixson received authorization from the United States Court of Appeals for the Fourth Circuit to file a second or successive § 2255 motion. ECF No. 94. Accordingly, on that date he filed, through counsel, a § 2255 petition asserting that his Virginia burglary and North Carolina breaking and entering convictions could no longer serve as predicate offenses under the ACCA.

         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). Moreover, because Mixson has already filed a § 2255 motion, he must show that his successive § 2255 motion involves "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. § 2255(h)(2). Mixson 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).

         A. The ACCA Enhanced Sentence Structure

         Mixson challenges the viability of the Virginia burglary and North Carolina breaking and entering predicate offenses used to support his status as an armed career criminal.[1] 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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