United States District Court, W.D. Virginia, Big Stone Gap Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia for United States;
Charles L. Bledsoe, Bledsoe Law Office, P.C., Big Stone Gap,
Virginia, for Defendant.
P. JONES, UNITED STATES DISTRICT JUDGE
Edgar Morrison, previously sentenced by this court following
a conviction for illegally possessing a firearm, has filed a
motion under 28 U.S.C. § 2255. He contends that his
enhanced sentence under provisions of the Armed Career
Criminal Act (“ACCA”) and in light of the recent
Supreme Court decision in Johnson v. United States,
135 S.Ct. 2551 (2015), is invalid. For the reasons that
follow, I will deny the motion.
was charged in a two-count Indictment with being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (“Count One”),
and possessing and disposing of a stolen firearm, in
violation of 18 U.S.C. § 2 and 922(j) (“Count
Two”). On April 16, 2015, he pleaded guilty, pursuant
to a written Plea Agreement, to Count One. As part of the
Plea Agreement, Morrison agreed that he had at least three
prior convictions for serious drug offenses and/or violent
felonies, such that he faced an enhanced sentence as an armed
career criminal under the ACCA. Plea Agreement 1-2, ECF No.
23. The Plea Agreement noted the prior convictions that
supported Morrison's status as an armed career criminal.
to his sentencing, a probation officer prepared a Presentence
Investigation Report (“PSR”) recommending a total
offense level of 30 and a criminal history category of IV,
resulting in an advisory guideline range of 135 to 168
months' incarceration. PSR ¶ 65, ECF No. 34.
However, because, under the ACCA, Morrison faced a statutory
mandatory minimum of 180 months' incarceration, his
guideline range became 180 months, in accordance with United
States Sentencing Guidelines Manual (“U.S.S.G.”)
26, 2015, following Morrison's guilty plea but before his
sentencing hearing, the Supreme Court decided
Johnson. On August 10, 2015, I adopted the PSR and
sentenced Morrison, under the ACCA, to 180 months'
imprisonment, the statutory mandatory minimum sentence.
Morrison's counsel noted:
I'm always somewhat troubled by those plea agreements
because as the court can tell from the guideline, from the
pre-sentence report the guideline calculation would have been
lower had it not been for the application of the ACCA, and
while ACCA is the law, it is kind of an unusual law because
it will apply to some folks where they, in some states where
they received their burglary convictions, and other states
with perhaps oddly worded burglary statutes those will not be
credited. I guess what I'm saying, I am recommending 180
moths, but I find the state of the law in this area
Hr'g Tr. 6, ECF No. 51. However, defense counsel did not
object to the PSR. I concluded that 180 months was an
appropriate sentence because of Morrison's “nearly
life time history of criminal conduct.” Id. at
8. Morrison did not appeal.
court appointed the same Federal Public Defender who
represented Morrison during his conviction and sentencing to
represent him in connection with a possible § 2255
motion. The Federal Public Defender assisted Morrison in
filing a pro se § 2255 motion and then filed a motion to
withdraw, noting that Morrison had alleged ineffective
assistance of counsel. Mot. 1, ECF No. 38. I granted the
motion, and appointed new counsel, who filed an amended
§ 2255 motion contending that Morrison's ACCA
sentence was invalid. In response, the government moved to
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. ...