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United States v. Hairston

United States District Court, W.D. Virginia, Danville Division

January 25, 2018

UNITED STATES OF AMERICA
v.
JESSIE BEN HAIRSTON, Petitioner.

          2255 MEMORANDUM OPINION

          JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.

         Jessie Ben Hairston, a federal inmate, filed a motion and supplemental motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government filed a motion to dismiss, and Hairston respond, making this matter ripe for consideration. After reviewing the record, I will grant Hairston's § 2255 motion and deny the government's motion to dismiss.

         I.

         On April 21, 2005, a federal grand jury charged Hairston and two codefendants in a multi-count superseding indictment with various firearm and drug-related crimes. He pleaded guilty, pursuant to a written plea agreement, to one count of conspiracy to possess a firearm while being an unlawful user of a controlled substance and making false statements to an authorized gun dealer, in violation of 18 U.S.C. §371; fourteen counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); eight counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) & 841(b)(1)(C); and two counts of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Plea Agree. at 1-2, ECF No. 62.

         The Presentence Investigation Report (“PSR”) recommended that Hairston receive an enhanced sentence because he qualified as an armed career criminal under the Armed Career Criminal Act, (“ACCA”), 18 U.S.C. § 924(e). The PSR relied on the following five predicate convictions to support Hairston's armed career criminal designation: (1) a 1979 New Jersey aiding and abetting armed robbery conviction; (2) a 1979 New Jersey robbery conviction; (3) a 1982 New Jersey first degree robbery conviction; (4) a 1989 New Jersey burglary conviction; and 1993 New Jersey third degree theft conviction. PSR ¶ 29, 30, 31, 35, 36.

         On November 18, 2005, I adopted the PSR and sentenced Hairston to a total of 540 months' incarceration. Judgment at 3, ECF No. 130. This sentence was comprised of a 60-month sentence on Count One and a 180-month sentence on each of the fourteen firearm and eight drug counts, to be served concurrently; as well as a 60-month and a 300-month sentence for the two convictions for use of a firearm in relation to a drug trafficking offense, to be served consecutively to each other and to the sentences imposed for the other counts.

         Hairston appealed, arguing that he was not advised that he faced an increased mandatory minimum sentence of fifteen years on the felon in possession of a firearm charges because of his status as an armed career criminal. On April 3, 2008, the United States Court of Appeals for the Fourth Circuit reversed and remanded. United States v. Hairston, 522 F.3d 336 (4th Cir. 2008).

         On January 16, 2009, Hairston again pleaded guilty, pursuant to a written plea agreement, to the same counts: conspiracy to possess a firearm while being an unlawful user of a controlled substance and making false statements to an authorized gun dealer, in violation of 18 U.S.C. §371; fourteen counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); eight counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) & 841(b)(1)(C); and two counts of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Plea Agree. at 1-2, ECF No. 199. The government filed a motion for substantial assistance, and both parties recommended a sentence of 180 months' incarceration. Id. at 5. I granted the motion and sentenced Hairston to 180 months, which was comprised of a 60-month sentence on Count One and concurrent 180-month sentences for all other counts. Judgment at 3, ECF No. 205. Hairston did not appeal.

         In October 2015, I appointed the Federal Public Defender's Office to represent Hairston and provide briefing, if necessary, in light of the Supreme Court's recent decision in Johnson v. United States, (“Johnson II”)[1], 135 S.Ct. 2551, 2563 (2015), pursuant to Standing Order 2015-5. The Federal Public Defender's Office filed a memorandum and amended memorandum in support. ECF Nos. 218, 224.

         Hairston alleges that I imposed an unconstitutional sentence, in light of Johnson II, because he no longer qualifies as an armed career criminal. On January 9, 2018, I held a hearing to explore this issue. In light of the briefs and arguments made by counsel at the hearing, I agree with Hairston that he no longer has three predicate offenses following Johnson II. Accordingly, I will grant his petition.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his 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). Hairston 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).

         A. The ACCA Enhanced Sentence Structure

         Hairston challenges the viability of the predicate offenses used to support his status as an armed career criminal. 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. 18 U.S.C. § 924(a)(2). When defendants convicted of a § 922(g) charge have three or more prior convictions for “serious drug offenses” or “violent felonies, ” however, they qualify as armed career criminals under the 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).

         In Johnson II, the Supreme Court invalidated part of the definition of “violent felony” under the ACCA. 135 S.Ct. at 2563. The ACCA defines a “violent felony” 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 Supreme Court reviewed the second part of subsection (ii) of the violent felony definition. It concluded that the clause, known as the “residual clause, ” which provides, “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” was unconstitutionally vague. 135 S.Ct. at 2563. The Supreme Court did not, however, strike down the other portions of the violent felony definition, which include subsection (i), known as the “force clause, ” and the first part of subsection (ii), delineating specific crimes, known as the “enumerated crimes clause.” Johnson II, 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”). In addition, the Johnson II decision did not disturb the ACCA's definition of “serious drug offenses” and had no effect on the continued viability of drug convictions to act as predicates. The Supreme Court's decision in Johnson II 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).

         B. Timeliness and Waiver

         Hairston argues that he should no longer be classified as an armed career criminal, and should not be subjected to the concomitant fifteen-year mandatory minimum sentence for his § 922(g) convictions because he no longer has three qualifying predicate convictions. The government argues that I should not consider the viability of Hairston's predicate offenses because his petition is ...


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