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United States v. Johnston

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

August 3, 2017

TONY LLOYD JOHNSTON, Petitioner. Criminal Action



         Tony Lloyd Johnston, a federal inmate, filed a motion and supplemental motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government filed a motion to dismiss, and Johnston responded, making this matter ripe for consideration. After reviewing the record, I conclude that the government's motion to dismiss must be granted and Johnston's § 2255 motion must be denied.


         On October 8, 2008, a federal grand jury charged Johnston in a three-count indictment with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (“Count One”); being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (“Count Two”); and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (“Count Three”). On July 15, 2009, Johnston pled guilty to all three counts in a written plea agreement, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Plea Agree. at 1, ECF No. 57. The plea agreement stipulated that Johnston might be classified as an armed career criminal if the court finds that he has the requisite number of predicate convictions, that he would be sentenced to 19 years' incarceration and that he waived any right to collaterally attack his conviction and sentence. Id. at 3, 6.

         The Presentence Investigation Report (“PSR”) recommended a total offense level of 31 and a criminal history category of VI for Counts One and Two, resulting in an imprisonment range of 188 to 235 months incarceration. PSR ¶ 47, ECF No. 64. The PSR concluded that Johnston was a career offender and an armed career criminal. The PSR listed the following prior convictions as support for Johnston's career offender designation: (1) a September 15, 1995 New York conviction for criminal possession of a controlled substance in the third degree, Id. ¶ 23; (2) a September 15, 1995 New York conviction for second degree robbery, Id. ¶ 24; and (3) convictions on February 5, 1999 and November 22, 1999 for the sale and possession with intent to distribute and distribution of cocaine, Id. ¶ 26. Although the PSR listed the two Virginia drug convictions as occurring on different dates, Johnston was convicted on November 22, 1999 of both drug charges. On February 5, 1999, Johnston was convicted of the separate crime of Virginia assault and battery. Id. ¶ 22. The PSR did not specify which convictions were used to support Johnston's armed career criminal status, although presumably they were the same predicates used to support his career offender designation. The PSR noted that Johnston faced an increased statutory mandatory minimum sentence of fifteen years, rather than a ten year statutory maximum sentence because of his armed career criminal status. Id. ¶ 46. In addition to the guideline range of 188 to 235 months for Counts One and Two, the PSR also recommended a statutory 60-month consecutive sentence on Count Three. Id. ¶ 47. Johnston did not object to the PSR.

         On November 30, 2009, I adopted the PSR and sentenced Johnston to the agreed-upon 19 years (228 months) imprisonment, consisting of 164 months imprisonment on each of Counts One and Two to run concurrently, and 60 months imprisonment on Count Three to run consecutively to the other two charges. Judgment at 2, ECF No. 66. Johnston did not appeal.

         Johnston filed numerous § 2255 petitions, all of which were dismissed. He received permission from the United States Court of Appeals for the Fourth Circuit to file a successive § 2255 petition on July 21, 2016, and filed his motion the same day in this court. ECF No. 123, 124. I appointed the Federal Public Defender's Office to represent Johnston and provide supplemental briefing, if necessary, in light of the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), pursuant to Standing Order 2015-5. The Federal Public Defender's Office filed a supplemental memorandum in support. ECF No. 130.

         Johnston alleges that I imposed an unconstitutional sentence, in light of Johnson, because he no longer qualifies as an armed career criminal. Because Johnston continues to have three predicate offenses following Johnson, I will deny his petition.


         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). When a petitioner already has filed a § 2255 motion, he may obtain relief in a second or subsequent petition by establishing that “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, ” invalidates his sentence. Id. § 2255(h). Johnston 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

         Johnston 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 person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...

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