United States District Court, W.D. Virginia, Danville Division
MICHAEL D. BLACKWELL Petitioner,
UNITED STATES OF AMERICA, Respondent.
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Michael D.
Blackwell's motion to rescind dismissal of claim and for
ruling on all claims in his motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. ECF Nos.
53, 69, 70. Blackwell 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 following the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), as well as recent Fourth Circuit case
law. In a previous opinion, I addressed part of
Blackwell's arguments but, by agreement of the parties,
held in abeyance consideration of other arguments. Mem. Op.
at 1 n.1, ECF No. 63. I now vacate my prior memorandum
opinion and order, and reach the merits of all of
Blackwell's claims for relief. After careful review of
the record, and in light of Johnson, I will grant
Blackwell's § 2255 motion, and deny the
government's motion to dismiss.
November 16, 2010, Blackwell pleaded guilty, pursuant to a
written plea agreement, to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g) and
924(e). Plea Agree. at 1, ECF No. 31. A Presentence
Investigation Report (“PSR”) was created prior to
sentencing. It recommended that Blackwell be designated an
armed career criminal based on the following convictions: two
Virginia convictions, one in 1975 and one in 1996, for
statutory burglary; a 1976 Virginia conviction for robbery;
and a 1976 Virginia conviction for malicious J wounding. PSR
¶¶ 21, 26, 28, and 48, ECF No. 42. Because of the
armed career criminal designation, the PSR recommended a
total offense level of 31 and a criminal history category of
VI, resulting in a sentencing range of 188 to 235 months'
incarceration. Id. ¶ 84. In addition, Blackwell
faced a statutory mandatory minimum sentence of 15 years'
incarceration. Id. ¶ 83; 18 U.S.C. §
924(e)(2). Without the armed career criminal enhancement,
Blackwell would have faced a statutory maximum of ten
years' incarceration. 18 U.S.C. § 924(a)(2). I
adopted the PSR and sentenced Blackwell to 180 months'
imprisonment and three years of supervised release. Judgment
at 2, 3, ECF No. 40. Following a motion by the government for
a sentence reduction for substantial assistance pursuant to
Rule 35(b) of the Federal Rules of Criminal Procedure, I
reduced his sentence to 72 months. Order at 1, ECF No. 48.
Blackwell did not appeal.
was released from prison on September 16, 2016. He currently
is serving a term of supervised release.
accordance with Standing Rule 15-5, I appointed the Federal
Public Defender's Office to represent Blackwell with
regard to any claim for relief that he might have under
§ 2255 following the Johnson decision. Defense
counsel subsequently filed a § 2255 motion alleging that
Johnson invalidated his ACCA enhanced sentence
because his Virginia predicate convictions no longer qualify
as violent felonies. The parties agreed that the viability of
Virginia statutory burglary as a predicate “violent
felony” under the ACCA was ripe, but requested that I
stay determination of the viability of Virginia robbery and
malicious wounding. ECF Nos. 58, 60. I granted that motion
and issued an October 6, 2016 decision addressing only the
viability of Virginia burglary as an ACCA predicate. I now
vacate my prior Blackwell decision and address
Blackwell's entire § 2255 in this decision.
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 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). Blackwell 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 ...