United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge.
Lee Jones, a federal inmate, has filed an authorized
successive motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, arguing that his
enhanced sentence as an armed career criminal under the Armed
Career Criminal Act, 18 U.S.C. § 924(e),
("ACCA"), is unlawful. After consideration of the
record and applicable case law, the court concludes the
Jones' motion must be dismissed.
along with multiple codefendants, was convicted, following a
trial, of conspiracy to possess with intent to distribute
cocaine hydrochloride and cocaine base, in violation of 21
U.S.C. §§ 846 and 841(a)(1); conspiracy to import
cocaine, in violation of 21 U.S.C. §§ 963 and
951(a); distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1); and two counts of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). Jones' Presentence Investigation Report
(“PSR") recommended that he receive an increased
sentence because he qualified as an armed career criminal in
that he had at least three prior convictions for a violent
felony and/or a serious drug offense. PSR ¶ 45, ECF No.
201. The predicate offenses supporting his status as an armed
career criminal included prior convictions for federal armed
bank robbery, Virginia malicious wounding, and Virginia
possession with intent to distribute cocaine. Id.
¶¶ 52, 53 and 54. On March 20, 1998, the court
sentenced Jones to a total of 360 months' incarceration
after adopting the PSR and concluding that he was an armed
career criminal. Jones appealed but the United States Court
of Appeals for the Fourth Circuit affirmed his conviction and
sentence. United States v. McGeorge, 173 F.3d 426,
*5 (4h Cir. 1999) (unpublished).
court appointed the Federal Public Defender's Office to
represent Jones and provide briefing, if necessary, in light
of the Supreme Court's decision in Johnson v. United
States. 135 S.Ct. 2551, 2563 (2015), pursuant to
Standing Order 2015-5. The Federal Public Defender's
Office filed a § 2255 Motion on Jones' behalf. On
December 15, 2016, the court stayed the case pending a
decision by the United States Court of Appeals for the Fourth
Circuit in United States v. Jenkins, Case No.
16-4121. Jenkins has now been decided, No. 16-4121,
2018 WL 1225728 (4th Cir. March 9, 2018) (unpublished);
accordingly, the § 2255 motion is ripe for review.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his or her 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). Jones 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
claims that he no longer qualifies as an armed career
criminal because his malicious wounding conviction cannot be
used to support an enhanced sentence under the ACCA. This
argument is foreclosed by Jenkins.
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, the Supreme Court invalidated part of the
definition of "violent felony" under the ACCA. 135
S.Ct. 2563. Specifically it concluded that crimes
"otherwise involving] conduct that presented] a serious
potential risk of physical injury to another, " known as
the "residual clause, " was unconstitutionally
vague. Id. at 2555, 2563. However, it did not strike
down the other portions of the violent felony definition,
including the "force clause, " which covers crimes
that have "as an element the use, attempted use, or
threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B)(i). The Supreme
Court's decision in Johnson 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).
has three predicate offenses that the court used to support
his enhanced ACCA sentence: a federal bank robbery
conviction, a Virginia drug conviction, and a Virginia
malicious wounding conviction. He challenges only his
malicious wounding conviction. He claims that such a
conviction no longer qualifies as a violent felony because it
does not fall under the "force clause" of the ACCA,
the only definition potentially applicable after
Johnson invalidated the residual clause. However,
Jenkins holds the opposite.
Jenkins, the Fourth Circuit concluded that Virginia
malicious wounding convictions continue to qualify as violent
felonies following Johnson. 2018 WL 1225728 *4. The
court held that because a conviction for malicious wounding
requires both "causation of bodily injury" and
"intent to maim, disfigure, disable or kill, " ...