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United States v. McConatha

United States District Court, E.D. Virginia, Richmond Division

January 30, 2018

UNITED STATES OF AMERICA,
v.
LARRY McCONATHA, JR., Defendant.

          MEMORANDUM OPINION (GRANTING IN PART AND DENYING IN PART 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         I. Johnson v. United States

         In 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).

         The 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. at 2557.

         II. Factual and Procedural Background

         Petitioner 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.)[1] Additionally, Petitioner qualified for an enhanced statutory sentence under the ACCA. (Id. at 1 .)[2] 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.)

         In his § 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 omitted).)

         III. Analysis

         A. Petitioner's Challenge to His Career Offender Designation

         The 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.

         B. Petitioner Is Entitled to Relief on His ...


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