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United States v. Laforce

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

August 4, 2017

UNITED STATES OF AMERICA
v.
DANNY DELANO LAFORCE, Defendant.

          Jennifer R Bockhorst, Assistant United States Attorney, Abingdon, Virginia for United States; Nancy C. Dickenson, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         The defendant, Danny Delano LaForce, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, challenging his 120-month sentence imposed by this court under the Armed Career Criminal Act (“ACCA”). His motion is based on the holding of the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015). The United States has filed a Motion to Dismiss and the issues have been fully briefed. After reviewing the record and considering the arguments of the parties, I will deny the United States' Motion to Dismiss and grant LaForce's § 2255 motion.

         I.

         On August 26, 2008, the grand jury charged LaForce in a Superseding Indictment with conspiracy to possess with intent to distribute and distribute methylphenidate and morphine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C) and 841(b)(1)(D); two counts of possessing with intent to distribute and distribute morphine and two counts of possessing with intent to distribute and distribute hydrocodone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 841(b)(1)(D) and 18 U.S.C. § 2; and three counts of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

         LaForce pleaded guilty to one count of being a felon in possession of a firearm in a written Plea Agreement. Plea Agreement 1, ECF No. 135. The Plea Agreement stipulated that LaForce was an armed career criminal and faced a statutory mandatory minimum sentence of 15 years. Id. It listed six convictions for Virginia burglary, one conviction for Virginia escape and one conviction for Virginia robbery as support for the enhanced sentence. Id. at 1-2. The Plea Agreement also included a collateral attack waiver, which provided that LaForce “waive[d] any right [he] may have to collaterally attack, in any future proceeding, any order issued in this matter.” Id. at 8.

         The Presentence Investigation Report (“PSR”) recommended that LaForce be designated as an armed career criminal under the ACCA because he had at least three previous convictions “for a violent felony or a serious drug offense.” PSR ¶ 47, ECF No. 273. The PSR listed the same convictions as those provided for in his Plea Agreemement. Id. at ¶¶ 52, 53, 54, 55 and 60. Because the PSR concluded that LaForce qualified as an armed career criminal, it recommended an advisory guideline range of 168 to 210 months. Id. at ¶ 90. On April 27, 2010, I sentenced LaForce to 120 months' imprisonment following a motion by the government for a downward departure for substantial assistance and five years of supervised release. Judgment at 2-3, ECF No. 217. LaForce did not appeal. LaForce was released from the custody of the Bureau of Prisons on February 28, 2017. He is currently serving a five-year term of supervised release.

         II.

         The ACCA provides for an enhanced sentence if a defendant is convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and “has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Prior to Johnson, the term “violent felony” was defined in the ACCA 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 risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The second portion of the second clause (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) is called the “residual clause” and was found to be unconstitutionally vague in Johnson. This holding applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). However, the first clause, referred to as the “force clause, ” and the beginning portion of the second clause, listing specific crimes, known as the “enumerated crimes clause, ” were not affected by the Johnson decision. 135 S.Ct. at 2563 (noting that other than the residual clause, the Court's holding “d[id] not call into question . . . the remainder of the [ACCA's] definition of a violent felony”).

         LaForce argues that following Johnson, all of the predicate offenses used to enhance his sentence under the ACCA - Virginia burglary, escape and robbery - can no longer be used to ...


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