United States District Court, W.D. Virginia, Harrisonburg Division
2255 MEMORANDUM OPINION
Michael F. Urbanski Chief United States District Judge
Anthony Thomas Jr., has filed a motion to vacate, set aside
or correct sentence under 28 U.S.C. § 2255. He argues
that his counsel was ineffective for failing to recognize
that the court imposed a sentence exceeding the maximum
allowed by statute following a supervised release violation..
The government|agrees. After careful review of the record and
applicable case law, the court concludes that Thomas is
entitled to relief and will grant his § 2255 motion.
pleaded guilty in Federal Court for the District of Maryland
to possession of an unregistered short-barreled shotgun, in
violation of 26 U.S.C: § 5841 and being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). On July 22, 2008, he was sentenced to 120 months'
imprisonment and three years' supervised release for the
shotgun charge and 144 months' imprisonment and five
years' supervised release for the felon in possession
charge, to run concurrendy, because the court concluded that
Thomas was an armed career criminal.
September 7, 2014, Thomas, through counsel, filed a consent
motion to correct sentence under 28 U.S.C. § 2241,
arguing that he no longer qualified as an armed career
criminal following Supreme Court and Fourth Circuit
precedent. Thomas argued that he had overserved his sentence
without the enhancement under the Armed Career Criminal Act
("ACCA"). The court granted the unopposed motion,
concluding that Thomas was no longer an armed career
criminal, and amended his sentence to time served plus two
weeks, to allow for him to make arrangements in preparation
for his release from prison. The court imposed the same terms
of supervised release. Thomas began his term of supervised
release in September 2014. On May 26, 2015, jurisdiction over
his case was transferred to this court.
2017, Thomas was convicted of possession of drugs in state
court. On July 18, 2017, this court concluded that Thomas
violated the conditions of his supervised release.
Accordingly, the court revoked his supervised release and
imposed a 24-month sentence for the shotgun-possession
conviction and a concurrent 36-month sentence for the
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). Thomas 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).
argues that his counsel provided ineffective assistance at
his supervised release revocation hearing because she failed
to object to the fact that he was sentenced to 36 months'
imprisonment for his felon-in-possession conviction, when he
faced a statutory maximum term of 24 months for that
conviction. Thomas' argument is meritorious, and
his sentence is unlawful.
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington. 466 U.S. 668,
687 (1984). In order to establish that his counsel's
assistance was not reasonably effective, a defendant must
satisfy a two-prong analysis: he must show both that
counsel's performance fell below an objective standard of
reasonableness and that he was prejudiced by counsel's
alleged deficient performance. Strickland, 466 U.S.
at 669. To satisfy the prejudice prong of Stickland.
a defendant must show that there is a reasonable probability
that, but for counsel's unprofessional error, the outcome
of the proceeding would have been different. Id. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
can satisfy Strickland's requirements and
establish that counsel provided ineffective assistance.
Thomas faced a maximum term of imprisonment of 10 years for
his felon in possession charge, after it was determined that
he no longer qualified as an armed career criminal under the
ACCA. 18 U.S.C. § 924(a)(2). A conviction with a maximum
10-year sentence is a class C felony. 18 U.S.C. §
3559(a)(3). The maximum term of supervised release that may
be imposed following a revocation of a term of supervised
release where the underlying conviction is a Class C felony,
is 24 months. 19 U.S.C. § 3583(e)(3).
was sentenced to 36 months' incarceration for the
felon-in-possession conviction following his supervised
release violation. Counsel erred by failing to object to this
sentence, as it exceeded the maximum sentence allowed by
statute. Accordingly, Thomas has established that
"counsel's representation fell below an objective
standard of, reasonableness." Strickland. 466
U.S. at 688. In addition, Thomas has established prejudice.
But for counsel's error, he would have received a
"more favorable" result, a lower sentence.
Id. at 695. Because Thomas was sentenced above the
statutory maximum for his felon-in-possession conviction
following his supervised release violation, he is entitled to
relief. See United States v. Pregent. 190 F.3d 279,
284 (4th Cir. 1999) ("Section 2255 provides relief for
cases in which the sentence was in excess of the maximum
authorized by law.") (internal quotation marks omitted).
sentence of 36 months is unlawful, as it exceeds the
statutory maximum of 24 months' incarceration.
Accordingly, the court will amend Thomas' judgment to a
total term of 24 months: 24 months as to the
shotgun-possession conviction and 24 months for the
felon-in-possession conviction. 28 U.S.C. § 2255(b)
("If the court finds that the . . . sentence imposed was