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United States v. Morrison

United States District Court, W.D. Virginia, Big Stone Gap Division

August 7, 2017

UNITED STATES OF AMERICA
v.
BILL EDGAR MORRISON, Defendant.

          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.

          OPINION

          JAMES P. JONES, UNITED STATES DISTRICT JUDGE

         Bill 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.

         I.

         Morrison 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.

         Prior 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.”) § 5G1.1(b).

         On June 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 troubling.

         Sentencing 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.

         The 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 dismiss.

         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. ...


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