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United States v. Johnson

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

February 12, 2018

UNITED STATES OF AMERICA
v.
WILLIE JOHNSON, Petitioner.

          2255 MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         Willie 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.

         I.

         On 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 agreement.

         The 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.[1] 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.

         On January 30, 2003, Judge James H. Michael[2] 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.

         The 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”)[3], 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.

         Mr. 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 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). 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).

         A. The ACCA Enhanced Sentence Structure

         Mr. 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).

         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”). 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 Procedural Default

         Mr. 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 ...


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