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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.
JOHNNY WAYNE 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, Johnny Wayne LaForce, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, challenging his 180-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 January 8, 2009, the grand jury charged LaForce in a Second Superseding Indictment with: possessing with intent to distribute morphine, in violation of 21 U.S.C. § 841(a)(1); possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and two 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. 161. 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 ¶ 27, ECF No. 173. The PSR listed five prior Virginia burglary convictions, one Virginia escape conviction, and one Virginia conviction for maliciously shooting at an occupied motor vehicle to support his armed career criminal status. Id. at ¶¶ 33, 34, 35, 37 and 45. Because the PSR concluded that LaForce qualified as an armed career criminal, it recommended an advisory guideline range of 180 to 188 months. Id. at ¶ 77. On June 21, 2010, I sentenced LaForce to 180 months' imprisonment. LaForce did not appeal.

         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, his Virginia burglary convictions cannot be used to support his status as an armed career criminal. I agree. A similar argument has recently been adopted by the United States Court of Appeals for the Fourth Circuit in Castendet-Lewis v. Sessions, an immigration law case, which held that the Virginia burglary statute is both broader than generic burglary and indivisible. 855 F.3d 253, 264 (4th Cir. 2017). The Fourth Circuit has applied its holding in Castendet-Lewis to conclude that Virginia burglary falls outside the scope of generic burglary in the enumerated crimes clause of the ACCA and cannot be used to support an enhanced sentence. United States v. Hadsell, No. 16-4767, 2017 WL 2772133, at *1 (4th Cir. June 26, 2017) (unpublished). Without the Virginia burglary convictions, LaForce does not have the requisite number of violent felonies to support his 180-month sentence and he is entitled to relief.[1]

         The government makes additional arguments that various procedural impediments preclude LaForce from prevailing on his § ...


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