United States District Court, W.D. Virginia, Charlottesville Division
2255 MEMORANDUM OPINION
K. MOON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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).
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.
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 person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential ...