United States District Court, W.D. Virginia, Lynchburg Division
2255 MEMORANDUM OPINION
K. MOON UNITED STATES DISTRICT JUDGE.
Nickelay Davis, a federal inmate, through counsel, filed a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. The government filed a motion to
dismiss, and the time within which Davis had to respond as
expired, making this matter ripe for consideration. After
reviewing the record, I conclude that the government's
motion to dismiss must be granted and Davis' § 2255
motion must be dismissed.
12, 2008, a federal grand jury charged Davis in a seven-count
indictment with three counts of distribution of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);
two counts of possession of a firearm in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. §
924(c); and two counts of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). He pleaded
guilty, in a written plea agreement, to one of the §
924(c) charges and one of the § 922(g) charges, and the
government agreed to dismiss the remaining counts against
him. The Presentence Investigation Report (“PSR”)
did not recommend that Davis be treated as an armed career
criminal. As a result, it recommended an advisory guideline
sentence of 57 to 71 months for the § 922(g) charge and
a consecutive 60 months for the § 924(c) charge, as
required by statute. PSR ¶¶ 58, 59, ECF No. 54.
April 8, 2009, I sentenced Davis to a 117-month sentence; 57
months as to the § 922(g) charge and 60 months as to the
§ 924(c) charge, to be served consecutively. Judgment at
2, ECF No. 31. I also sentenced him to five years of
supervised release on the § 922(c) charge and a
concurrent three years on the § 922(g) charge.
Id. at 3. Davis did not appeal.
22, 2016, Davis filed a § 2255 motion challenging his
sentence in light of Johnson v. United States, 135
S.Ct. 2551, 2563 (2015). I appointed the Federal Public
Defender's Office to represent Davis and provide
supplemental briefing, if necessary, in light of
Johnson, pursuant to Standing Order 2015-5. The
Federal Public Defender's Office filed an amended §
2255 petition on August 25, 2016. Davis alleges that even
though he was not sentenced as an armed career criminal, his
guideline range was increased because of a prior conviction
for a “crime of violence, ” the definition of
which was affected by Johnson.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his or her 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). Davis 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
is not entitled to relief because his case is wholly
unaffected by the Johnson decision. 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, as
was the case for Davis. 18 U.S.C. § 924(a)(2). However,
when a defendant convicted of a § 922(g) charge has
three or more prior convictions for “serious drug
offenses” or “violent felonies, ” he
qualifies as an armed career criminals under the Armed Career
Criminal Act (“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. § 924(e)(1).
Johnson, the Supreme Court invalidated part of the
definition of “violent felony” under the ACCA,
known as the “residual clause.” 135 S.Ct. at
2557. As a result, the decision limited the types of prior
convictions that can be used as predicates to increase the
defendant's sentence. 18 U.S.C. § 924(e)(2)(B)(ii).
The Supreme Court later held that its decision in
Johnson announced a new rule of constitutional law
that applies retroactively to cases on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
However, because Davis did not receive an enhanced statutory
sentence as an armed career criminal, Johnson has no
bearing on his claims.
Davis' Advisory Guideline Range
argues that even though he was not sentenced as an armed
career criminal, his advisory guideline range was increased
because of a prior conviction for a “crime of violence,
” the definition of which was affected by
Johnson. Specifically, Davis asserts that his prior
2004 Virginia conviction for shooting into an occupied
vehicle qualified as a “crime of violence” only
under the “residual clause” of the guidelines.
United States Sentencing Guideline (U.S.S.G.) § 2K2.1, a
defendant's base offense level is increased to 20 if
“the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of . .
. a crime of violence.” At the time that Davis was
sentenced, “crime of violence” in U.S.S.G. §
2K2.1 included ...