United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING IN PART AND DENYING IN
PART 28 U.S.C. § 2255 MOTION)
E. HUDSON UNITED STATES DISTRICT JUDGE
proceeding with counsel, filed this 28 U.S.C. § 2255
Motion. The Government acknowledges that, in light of the
Fourth Circuit's decision in Castendet-Lewis v.
Sessions, 855 F.3d 253 (4th Cir. 2017), Petitioner no
longer qualifies for an enhanced sentence under the Armed
Career Criminal Act ("ACCA"). (ECF No. 40, at 2.)
Nevertheless, the Government asserts that the Court should
merely correct Petitioner's ACCA sentence and not conduct
a full resentencing because Petitioner "received the
same, concurrent sentence on [the] drug trafficking and
possession of [a] firearm by felon counts in light of him
qualifying as a Career Offender and an Armed Career Criminal
" (Id. at 2-3.) For the reasons set forth
below, the Court agrees with the Government's position.
Johnson v. United States
Johnson v. United States, the Supreme Court
described the impact of the Armed Career Criminal Act
("ACCA") on federal gun laws and noted that:
Federal law forbids certain people-such as convicted felons,
persons committed to mental institutions, and drug users-to
ship, possess, and receive firearms. § 922(g). In
general, the law punishes violation[s] of this ban by up to
10 years' imprisonment. § 924(a)(2). But if the
violator has three or more earlier convictions for a
"serious drug offense" or a "violent felony,
" the [ACCA] increases his prison term to a minimum of
15 years and a maximum of life. § 924(e)(1).
135 S.Ct. 2551, 2555 (2015) (citations omitted).
ACCA defines a violent felony as: "any crime punishable
by imprisonment for a term exceeding one year" and
"(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) (emphasis
added). "The closing words of this definition,
italicized above, have come to be known as the Act's
residual clause." Johnson, 135 S.Ct. at 2556.
In Johnson, the Supreme Court held that the residual
clause of the ACCA is unconstitutionally vague. Id.
Factual and Procedural Background
pled guilty to possession with intent to distribute five
grams or more of cocaine base (Count One) and possession of a
firearm and ammunition by a convicted felon (Count Three).
(ECF No. 14, at 1.) In light of his prior convictions for
violent felonies or serious drug offenses, Petitioner
qualified for a sentence enhancement as a career offender
under § 4B 1.1(b) of the Sentencing Guidelines
("USSG"). (Presentence Investigative Report
("PSR") ¶ 29.) Additionally, Petitioner
qualified for an enhanced statutory sentence under the ACCA.
(Id. at 1 .) Both Sentencing Guidelines enhancements
resulted in an Offense Level of 31 and a Criminal History of
Category VI, resulting in an advisory guideline range of
188-235 months. (Id. ¶ 29, Worksheet D, at 1.)
At sentencing, the Court denied Petitioner's request for
a variant sentence and sentenced Petitioner to 188 months of
imprisonment. (ECF No. 41, at 9.)
§ 2255 Motion, Petitioner contends: "In light of
Johnson, Mr. McConatha's prior convictions for
statutory burglary do not qualify as 'violent
felonies' or 'crimes of violence' under the force
clauses or the enumerated offense clauses under ACCA and
U.S.S.G. § 4B1.2." (ECF No. 27, at 4 (emphasis
Petitioner's Challenge to His Career Offender
aspect of Petitioner's claim that challenges his career
offender designation based on Johnson lacks merit.
"[T]he Supreme Court concluded that the Guidelines are
not subject to a vagueness challenge under the Due Process
Clause-----Johnson's vagueness holding does not
apply to the residual clause in [USSG] § 4B
1.2(a)(2)." United States v. Lee, 855 F.3d 244,
246-47 (4th Cir. 2017) (citing Beckles v. United
States, 137 S.Ct. 886, 892 (2017)). Accordingly,
this aspect of Petitioner's claim will be dismissed.
Petitioner Is Entitled to Relief on His ...