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Blackwell v. United States

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

July 25, 2017




         This 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.


         On 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.

         Blackwell was released from prison on September 16, 2016. He currently is serving a term of supervised release.

         In 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.


         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 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).


         A. The ACCA Enhanced Sentence Structure

         Blackwell 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).

         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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