United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
This
matter is before the court on Petitioner Thomas William
Robinson's motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. ECF No. 34.
Robinson asserts that he no longer qualifies as an armed
career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), and that he no
longer qualifies as a career offender under United States
Sentencing Guidelines (“U.S.S.G.”) §§
4B1.1 and 4B1.2. He argues that he does not have the
requisite predicate convictions necessary to support such
designations following the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
(“Johnson II”)[1], as well as recent Fourth
Circuit case law. After careful review of the record, and in
light of Johnson II, the court will deny
Robinson's § 2255 motion, and grant the
government's motion to dismiss.
I.
On
September 9, 1991, Robinson pleaded guilty to: four counts of
aiding and abetting an armed bank robbery, in violation of 18
U.S.C. §§ 2, 2113(a), and 2113(d); four counts of
possessing a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c); and three counts of possessing a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g). A Presentence Investigation Report
(“PSR”) was created prior to sentencing. Although
the PSR did not specify on which convictions it relied to
support its recommendation of an enhanced ACCA and Guidelines
sentence, the following convictions could have been used to
support Robinson's status as an armed career criminal: a
1972 Virginia conviction for armed robbery; a 1972 Virginia
conviction for two counts of burglary; a 1974 Virginia
conviction for armed robbery; a 1974 Virginia conviction for
possession of marijuana with intent to distribute; a 1975
Virginia conviction for escape from custody; a 1975 Virginia
conviction for three counts of robbery; a 1975 Virginia
conviction for armed robbery; a 1976 Virginia conviction for
four counts of armed robbery; a 1976 North Carolina
conviction for armed robbery; a 1976 Virginia conviction for
robbery; and a 1982 Virginia conviction for two counts of
feloniously injuring an employee of a penal institution. PSR
¶¶ 57, 58, 60 - 67, and 69, ECF No. 36. On December
9, 1991, I adopted the PSR and sentenced Robinson to a term
of 400 months' imprisonment. Robinson did not appeal.
On
September 8, 2015, in accordance with Standing Order 15-5,
the court appointed the Federal Public Defender's Office
to represent Robinson with regard to any claim for relief
that he might have under § 2255 following the
Johnson II decision. Defense counsel filed this
§ 2255 motion alleging that Johnson II
invalidated Robinson's enhanced sentence because his
Virginia predicate convictions for burglary, armed robbery,
escape, and causing injury to a corrections officer no longer
qualify as violent felonies. The government responded,
arguing that the Johnson II decision does not afford
Robinson relief because he continues to have the requisite
number of predicate offenses to support his armed career
criminal and career offender status.
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). Robinson 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).
III.
1.
Armed Career Criminal Status
A.
The ACCA Enhanced Sentence Structure
Robinson
challenges the enhanced sentence he received because I
determined him to be 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). When defendants convicted of a
§ 922(g) charge have three or more prior convictions for
“serious drug offenses” or “violent
felonies, ” however, 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). In Johnson II, 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”). In addition, Johnson II
did not affect the definition of “serious drug
offenses, ” convictions for which continue to support
an enhanced ACCA sentence. Therefore, the Johnson II
decision only limited the types of prior convictions ...