United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Jimenez, a federal inmate proceeding through counsel, brings
this habeas corpus petition pursuant to 28 U.S.C. §
2255, asking the court to correct his sentence under the
Armed Career Criminal Act ("ACCA") in light of the
United States Supreme Court decision in Johnson v. United
States. 135 S.Ct. 2551 (2015). ECF No. 120.
Specifically, Jimenez argues that his Florida battery
conviction referenced in paragraph 24 of the Presentence
Investigation Report ("PSR"), ECF No. 127, no
longer qualifies as a violent felony under the ACCA, leaving
him without three predicate convictions needed to invoke 18
U.S.C. § 924(e)'s 180-month mandatory minimum
sentence. The government agrees that Jimenez's sentence
on Count Four is no longer lawful, and that he must be
resentenced as to that count. The court concurs and will
order that Jimenez be resentenced.
August 20, 2009, a federal grand jury returned an indictment
charging in Count One that Jimenez and Moises Morejon
conspired to distribute 500 grams or more of a mixture or
substance containing methamphetamine, in violation of 21
U.S.C. §§ 846 & 841 (b)(1)(A). Count Four of
the indictment charged Jimenez with possessing a firearm
while a convicted felon, in violation of 18 U.S.C. §
922(g)(1). On August 24, 2009, the government filed an
information, pursuant to 21 U.S.C. § 851, seeking an
enhanced sentence on Count One based on Jimenez's two
prior Florida felony drug convictions. ECF No. 18. As a
result of the filing of the § 851 notice referencing two
prior felony drug convictions, Jimenez faced a statutorily
mandated life sentence.
Rule 11(c)(1)(C) plea agreement filed on November 10, 2009,
Jimenez and the government negotiated around the mandatory
life sentence. In this binding plea agreement, Jimenez agreed
to plead guilty to Counts One and Four and receive a 240
month sentence. ECF No. 54. Page three of the plea agreement
contains its critical terms. There, Jimenez states that
"[t]he United States and I have agreed that, if I comply
with the provisions of this plea agreement, including but not
limited to, the requirement to truthfully testify if called
as a witness, I will be incarcerated for a period of 240
months." Id. at 3. In exchange for his guilty
plea and agreement to the 240 month sentence, the government
agreed to withdraw its § 851 notice as to one of
Jimenez's prior Florida felony drug convictions, taking
the mandatory life sentence off the table. Id. The
effect of the plea agreement was that Jimenez would receive
the mandatory minimum sentence of 240 months set by statute
for a 21 U.S.C. § 841(b)(1)(A) offense enhanced for one
prior felony drug conviction.
court directed Probation to prepare a PSR in advance of
sentencing. The PSR revealed that Jimenez had a number
of other prior felonies in Florida, including a 1997
i conviction for attempted robbery, a 2001
conviction for battery, and a 2003 conviction for aggravated
battery. PSR, ECF No. 127, at ¶¶ 28, 29, 32. The
PSR made two findings based on these convictions. First, it
concluded that Jimenez's convictions for battery and
aggravated battery were crimes of violence, rendering him a
career offender under USSG § 4B1.1. PSR, ECF No. 127, at
¶ 24. The career offender classification increased
Jimenez's base offense level under the guidelines from a
level 32 to a level 37. Second, the PSR concluded that these
convictions were violent felonies as defined in 18 U.S.C.
§ 924(e), subjecting Jimenez to a 15-year mandatory
minimum sentence for his § 922(g) felon in possession
conviction under the ACCA. Based on his career offender
status, the PSR set Jimenez's guidelines range at 262 to
327 months, based on a total offense level of 34 and criminal
history category of VI. Jimenez did not object to the PSR.
court conducted a sentencing hearing on February 2, 2010 and
sentenced Jimenez to the agreed-upon 240 month sentence. The
judgment entered on February 8, 2010 set the sentence at
"240 months as to count 1 and count 4 to run
concurrently." Judgment, ECF No. 76, at 2. Jimenez did
not appeal his conviction.
24, 2016, Jimenez filed this § 2255 motion to vacate his
sentence in light of Johnson. 135 S.Ct. at 2563. In
his motion, Jimenez alleged that he no longer qualifies as an
armed career criminal because his prior felony conviction for
attempted robbery under Florida law no long constitutes a
"violent felony." Jimenez additionally seeks review
of his career offender status. ECF No. 120.
28 U.S.C. § 2255, a federal inmate may move the
sentencing court to vacate, set aside, or correct the
prisoner's sentence. Courts may afford relief where the
petitioner proves that his sentence was "imposed in
violation of the Constitution or laws of the United
States." Id. § 2255(a). If the court
determines the sentence was unlawfully imposed, it
"shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate."
Id. § 2255(b).
convicted felon found guilty of possessing a firearm faces a
maximum sentence of 120 months. 18 U.S.C. § 924(a)(2).
However, the ACCA provides for a mandatory minimum sentence
of 180 months when a defendant was previously convicted of at
least three prior serious drug offenses or violent felonies.
Id. § 924(e)(1). A "violent felony"
is defined as:
[A]ny crime punishable by imprisonment for a term exceeding
one year.. .that- (i) has an element the use, attempted use,
or threatened use of physical force against the person of
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct
that presents a serious potential risk of ...