United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
Glenn Alcorn, a federal inmate, has filed a 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, I
conclude Alcorn's motion must be dismissed.
pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). His 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 ¶ 17 [ECF No. 76].) The predicate offenses
supporting his status as an armed career criminal included
prior Virginia convictions for distribution of cocaine,
accommodation distribution of cocaine, and unlawful wounding.
(Id. ¶¶ 24 and 26.) On July 18, 2014, 1
adopted the PSR and concluded that Alcorn was an armed career
criminal. Following a motion for substantial assistance filed
by the government [ECF No. 52], I sentenced Alcorn to a total
of 100 months' incarceration.
to Standing Order 2015-5, I appointed the Federal Public
Defender's Office to represent Alcorn 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's Office
filed a § 2255 Motion on Alcorn's behalf. On
September 19, 2017, the case was stayed pending a decision by
the United States Court of Appeals for the Fourth Circuit in
United States v. Jenkins, No. 16-4121.
Jenkins has now been decided, 719 Fed.Appx. 241 (4th
Cir. March 9, 2018) (unpublished), cert, denied 2018
WL 3009028 (Oct. 1, 2018); 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). Alcorn 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 unlawful 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.
Id. § 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).
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 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, 2563. It did
not, however, 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. He does not challenge his two
drug-related convictions. Accordingly, I need only decide the
continued viability of his unlawful wounding conviction.
Alcorn argues that his unlawful wounding 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
Jenkins, the Fourth Circuit concluded that Virginia
unlawful wounding convictions continue to qualify as violent
felonies following Johnson. 719 Fed.Appx. 241, 246
(4th Cir. 2018) (unpublished), cert, denied 2018 WL
3009028 (Oct. 1, 2018). The court held that, because a
conviction for unlawful wounding requires both
"causation of bodily injury" and "intent to
maim, disfigure, disable or kill," it satisfies the
force clause of the ACCA. Johnson, 2018 WL 1225728
*1. The analysis in Jenkins applies equally to
Virginia malicious wounding convictions. Virginia malicious
wounding is a more serious crime than unlawful wounding;
therefore, the Fourth Circuit's holding that unlawful
wounding involves the force necessary to satisfy the ACCA
necessarily also applies to malicious wounding convictions.
See Jenkins, 719 F. App's at 244 (noting that
Virginia Code § 18.2-51 criminalizes both ...