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United States v. Jones

United States Court of Appeals, Fourth Circuit

February 4, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JAMES ERIC JONES, Defendant-Appellant.

          Argued: December 13, 2018

          Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:06-cr-01238-TLW-1; 4:16-cv-01447-TLW)


          Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          Casey P. Riddle, Assistant Federal Public Defender, William F. Nettles, IV, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Florence, South Carolina, for Appellant.

          Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

          Before NIEMEYER, KING, and WYNN, Circuit Judges.


         James Eric Jones appeals from a decision in the District of South Carolina denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, which was imposed more than ten years ago in 2008. By his motion, Jones sought to be resentenced based on the contention that - in light of recent Supreme Court decisions - he no longer qualifies for the fifteen-year mandatory minimum sentence required by the Armed Career Criminal Act (the "ACCA"). According to Jones, he does not have the three predicate convictions that are required to be properly designated as an "armed career criminal." More specifically, he maintains that his South Carolina felony conviction for assaulting, beating, or wounding a law enforcement officer while resisting arrest (hereinafter, the "ABWO offense") is not a "violent felony" predicate conviction under the ACCA. As explained below, we agree with Jones that the ABWO offense is not an ACCA "violent felony," and we thus vacate and remand.



         On April 10, 2007, a jury in South Carolina found Jones guilty of the federal offense of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Leading to his sentencing hearing, the probation officer prepared a presentence report (the "PSR") that recommended to the district court that Jones be designated as an "armed career criminal" under the ACCA. The ACCA mandates that a defendant who contravenes § 922(g)(1) is subject to a minimum sentence of fifteen years - as opposed to the otherwise applicable ten-year maximum for that offense - if the defendant has three prior "violent felony" or "serious drug offense" convictions. See 18 U.S.C. § 924(a)(2), (e)(1).[1] Although the PSR did not identify the specific offenses on which it relied for the ACCA enhancement, it identified several prior convictions of Jones for South Carolina offenses, including those for attempted burglary, second-degree burglary, and strong arm robbery. In addition, the PSR relied on an ABWO offense, which violates South Carolina Code section 16-9-320(B) (hereinafter, the "ABWO statute"), plus two convictions for assault and battery of a high and aggravated nature ("ABHAN").

         At the sentencing hearing conducted on March 20, 2008, the district court ruled - consistent with the PSR - that Jones was an armed career criminal because he had at least three prior "violent felony" convictions. Pursuant to the ACCA, a "violent felony" is any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the "force clause"]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the "enumerated crimes clause"], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the "residual clause"].

See 18 U.S.C. § 924(e)(2)(B). The ACCA thus contains three distinct clauses (i.e., the force clause, the enumerated crimes clause, and the residual clause) that define a "violent felony."

         Relying on the ACCA's force and enumerated crimes clauses, the district court determined that Jones's prior convictions for attempted burglary, second-degree burglary, and strong arm robbery were ACCA "violent felon[ies]," and were thus ACCA predicate offenses. Although the Government argued that Jones's other convictions - the ABWO offense and the ABHAN offenses - also constituted ACCA predicates, the court did not address that proposition. Because of his armed career criminal designation, Jones was subject to a mandatory minimum sentence of fifteen years. The court sentenced him to 456 months in prison.[2]

         Jones appealed his conviction and sentence to this Court, and his counsel filed what we call an "Anders brief," advising us that he could not identify any reversible error, but questioning whether the sentencing court had correctly designated Jones to be an armed career criminal.[3] Relying on Jones's convictions for second-degree burglary, strong arm robbery, and the ABHAN offenses, we ruled that Jones had been correctly classified as an armed career criminal and affirmed. See United States v. Jones, 312 Fed.Appx. 559, 560 (4th Cir. 2009). Jones unsuccessfully petitioned for certiorari in the Supreme Court of the United States. See Jones v. United States, 557 U.S. 927 (2009). He thereafter also sought collateral relief by way of a 28 U.S.C. § 2255 motion, which the district court denied. In 2011, we affirmed the court's denial of § 2255 relief. See United States v. Jones, 419 Fed.Appx. 365, 365 (4th Cir. 2011).


         Five years later, in April 2016, Jones moved us for authorization to file a successive motion under 28 U.S.C. § 2255, predicated on the Supreme Court's 2015 decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (hereinafter, "Johnson II").[4]See 28 U.S.C. §§ 2244(b)(3); 2255(h) (specifying procedures and standards for filing successive § 2255 motions). The Johnson II decision had invalidated as unconstitutionally vague the residual clause of the ACCA's "violent felony" definition, as codified in § 924(e)(2)(B)(ii). That decision, however, left intact the ACCA's other two clauses defining a "violent felony," i.e., the force clause and enumerated crimes clause. See 135 S.Ct. at 2563. Soon thereafter, in Welch v. United States, the Court ruled that Johnson II applies retroactively to cases on collateral review. See 136 S.Ct. 1257, 1268 (2016). As a result of the Court's rulings in Johnson II and Welch, we authorized Jones to file a successive § 2255 motion in the district court.

         By way of his § 2255 motion, Jones contended that he no longer qualified for an ACCA-enhanced sentence and that he was entitled to be resentenced to no more than ten years. The Government disagreed, however, and moved for summary judgment. It asserted - even after Johnson II - that Jones yet had at least three predicate "violent felony" convictions. In particular, the Government argued that Jones had been twice convicted of strong arm robbery in South Carolina and once convicted of the ABWO offense. Significantly, the Government no longer argued that Jones's convictions for attempted burglary, second-degree burglary, and the ABHAN offenses were ACCA ...

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