United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia for United States; Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
P. JONES UNITED STATESISTRICT JUDGE
defendant, Jessie Morgan Ervin, Jr., has filed a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255, arguing that his enhanced sentence as an armed
career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is unlawful.
After consideration of the record and applicable case law, I
conclude that Ervin's motion must be dismissed.
pleaded guilty, in a written Plea Agreement, to being a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g), and distributing and possessing with intent to
distribute crack cocaine, in violation of 21 U.S.C.
§841(a)(1), (b)(1)(C). Ervin's 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 or serious drug
offense, or both.” PSR ¶ 33, ECF No. 48. The
predicate offenses supporting his status as an armed career
criminal included a prior Virginia conviction for malicious
wounding, and two prior Virginia convictions for possession
of cocaine with intent to distribute. Id. at
¶¶ 41, 42 and 43. On October 23, 2013, I sentenced
Ervin to 180 months' incarceration on each count, to be
served concurrently, after adopting the PSR and concluding
that he was an armed career criminal. Ervin did not appeal.
appointed the Federal Public Defender to represent Ervin and
provide briefing, if necessary, in light of the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551, 2563 (2015). The Federal Public Defender
filed an Amended § 2255 Motion on Ervin's behalf,
supplementing his pro se § 2255 Motion. ECF Nos. 60, 63.
On August 24, 2017, I 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1225728 (4th Cir. Mar. 9, 2018) (unpublished) and
accordingly, the § 2255 Motion is ripe for review.
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). Ervin 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. §
Johnson, the Supreme Court invalidated part of the
definition of “violent felony” under the ACCA.
135 S.Ct. at 2563. Specifically it concluded that crimes
“otherwise involv[ing] conduct that present[ed] a
serious potential risk of physical injury to another, ”
known as the “residual clause, ” was
unconstitutionally vague. Id. at 2555-56. 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 I used to support his
enhanced ACCA sentence, two drug convictions, which he does
not challenge here, and one conviction for malicious
wounding. He claims that malicious wounding no longer
qualifies as a violent felony because it does not fall under
the “force clause” of the ACCA, the only