United States District Court, W.D. Virginia, Charlottesville Division
2255 MEMORANDUM OPINION
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Johnson, a federal inmate, filed a motion and supplemental
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. ECF Nos. 65, 87. The government
filed a motion to dismiss, ECF No. 94, and Mr. Johnson
responded, ECF No. 98, making this matter ripe for
consideration. After reviewing the record, I conclude that
Mr. Johnson's § 2255 motion must be granted and that
the government's motion to dismiss must be denied.
March 15, 2002, a federal grand jury charged Mr. Johnson and
a codefendant in a multi-count indictment. Mr. Johnson was
charged with conspiracy to commit bank robbery, in violation
of 18 U.S.C. § 371; aggravated bank robbery with a
deadly weapon, in violation of 18 U.S.C. §§ 213(a)
and (d); brandishing a semiautomatic weapon during a crime of
violence, in violation of 18 U.S.C. § 924(c); and being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). On November 14, 2002, Mr.
Johnson pleaded guilty to all four counts in a written plea
Presentence Investigation Report (“PSR”)
recommended a total offense level of 34 and a criminal
history category of VI for all counts but the § 924(c)
count for brandishing a weapon, resulting in an imprisonment
range of 262 to 327 months' incarceration for those
counts. PSR ¶ 61, ECF No. 99. The PSR also recommended a
consecutive sentence of ten years to life on the brandishing
count. Id. ¶ 60. The PSR concluded that Mr.
Johnson was a career offender under the Guidelines and an
armed career criminal under the Armed Career Criminal Act
(“ACCA”). Id. ¶¶ 20, 22. The
PSR relied on the following prior convictions to support Mr.
Johnson's career offender and armed career criminal
designations: a 1983 conviction for two counts of federal
bank robbery and a 1995 New York conviction for attempted
burglary. Id. ¶¶ 30, 31. Johnson also had
another 1995 New York conviction for attempted burglary,
which was listed in the PSR, but which the PSR did not
explicitly rely on in determining Johnson's career
offender and armed career criminal status. Id.
¶ 32. In addition, a 1976 New York robbery conviction
qualified as a predicate offense for armed career criminal
purposes (but not career offender purposes due to the age of
the offense) at the time of sentencing. Id.
¶ 29. The PSR noted that Mr. Johnson faced an increased
statutory mandatory minimum sentence of fifteen years, rather
than a ten-year statutory maximum sentence for his
felon-in-possession count, because of his armed career
criminal status. Id. ¶ 60. Johnson did not
object to the PSR.
January 30, 2003, Judge James H. Michael adopted the PSR
and sentenced Mr. Johnson to a total of 420 months'
imprisonment, consisting of 60 months on the
conspiracy-to-commit-bank-robbery count, 300 months on the
aggravated-bank-robbery and felon-in-possession counts, all
to run concurrently, and 120 months on the
brandishing-a-weapon count, to run consecutively with the
other counts. Sent. Hr'g Tr. at 14, ECF No. 62. Mr.
Johnson did not appeal.
Federal Public Defender's Office was appointed to
represent Mr. Johnson and provide briefing, if necessary, in
light of the Supreme Court's recent decision in
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015) (“Johnson II”), pursuant to
Standing Order 2015-5. The Federal Public Defender's
Office filed a § 2255 motion and a supplemental motion
on Mr. Johnson's behalf. ECF No. 65.
Johnson alleges that Judge Michael imposed an
unconstitutional sentence, in light of Johnson II,
because he no longer qualifies as an armed career criminal or
a career offender. Because Mr. Johnson no longer has three
predicate offenses to support his ACCA sentence, I will grant
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). Mr. Johnson 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
Johnson 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). However, when
defendants convicted of a § 922(g) charge have three or
more prior convictions for “serious drug
offenses” or “violent felonies, ” 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).
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
[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”). 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).
Timeliness and Procedural Default
Johnson argues that he is entitled to resentencing because
his predicate offenses no longer support his designation as
an armed career criminal or a career offender. The government
argues that I should not consider the viability of Mr.
Johnson's predicate offenses because his petition ...