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United States v. Vance

United States District Court, W.D. Virginia, Abingdon Division

September 17, 2019

UNITED STATES OF AMERICA
v.
RICKY LEE VANCE, Defendant

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski, Chief United States District Judge

         On June 24, 2016, petitioner Ricky Lee Vance, represented by counsel, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that he was entided to relief pursuant to the holding in Johnson v. United States. 135 S.Ct. 2551 (2015). ECF No. 104. On September 21, 2016, the government filed a motion to dismiss the petition and on October 20, 2016, Vance filed additional authority in support of his motion. ECF Nos. 114, 116. On February 9, 2017 the court entered an order holding the petition in abeyance pending resolution of Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and United States v. Jimenez-Segura. No. 1:07-CR-146, 2016 WL 4718949 (E.D. Va. 2016). ECF No. 128. On August 7, 2018, the court continued this case in abeyance pending the decision of the United States Court of Appeals for the Fourth Circuit in United States v. Simms. 914 F.3d 229 (4th Cir. 2019). Simms has now been decided and the Supreme Court decided a similar issue in United States v. Davis. 139 S.Ct. 2319 (2019). The parties have fully briefed the issues and they are ripe for disposition.

         As the government concedes, changes in the law since Johnson was decided require the court to GRANT Vance's motion to vacate his sentence as to Count 1. ECF No. 104. The government's motion to dismiss the § 2255 petition, ECF No. 114, is DENIED. Vance's motion for extension of time to file briefing, ECF No. 132, is DENIED as MOOT. Vance's motion for immediate release or for a hearing, ECF No. 134, is DENIED as MOOT. The government's motion to stay the ruling for no less than 30 days, ECF No. 135, is DENIED as MOOT. Vance's conviction under Count 1 for use of a destructive device in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) and the mandatory 30-year sentence assessed on that charge are VACATED. The government's motion to authorize alternative procedures for crime victim notification, ECF No. 137, is GRANTED.

         BACKGROUND

         On September 12, 1994, following a jury trial, Vance was convicted of using a destructive device in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Count 1); attempted destruction by explosive in violation of 18 U.S.C. § 844(i) (Count 2); possession of an unregistered destructive device in violation of 26 U.S.C. §§ 5861(d), 5845(a)(8), 5845(f), and 5871 (Count 3); and receipt or transfer of stolen explosives in violation of 18 U.S.C. §§ 842(h) and 844(a) (Count 4). ECF No. 97 at 1. The court sentenced Vance to 120 months each on Counts 2, 3, and 4, to run consecutively to each other, and to 360 months on Count 1 to run consecutively to the term imposed in Counts 2, 3, and 4, to the extent necessary to produce a total term of 720 months. The terms are to be followed by 3-year concurrent terms of supervised release on Counts 2, 3, and 4, and a 5-year term of supervised release on Count 1, to run concurrently with the 3-year terms. ECF No. 37.

         The convictions stem from Vance's failed attempt to cause an explosion at his wife's place of work. In 1994 Vance and his wife were going through a contentious divorce involving custody of their children. ECF No. 97 at 2-4. On April 23, 1994, Vance placed a homemade explosive device near two tanks of liquid oxygen at his wife's place of employment. The device, which contained seven sticks of dynamite and two blasting caps, was faulty and did not explode. Law enforcement experts testified that if the device had detonated and ruptured the nearby tanks of liquid oxygen, it would have been highly destructive. Id. at 4.

         Following his conviction, Vance filed a direct appeal with the Fourth Circuit Court of Appeals, which affirmed his conviction and sentence. United States v. Vance. 87 F.3d 1309 (4th Cir. 1996) (unpublished). Vance has filed two previous § 2255 motions, both of which were denied at the district court level and on appeal. See United States v. Vance. 153 F.3d 724 (4th Cir. 1998) (unpublished) and United States v. Vance. 585 F.App'x 105 (4th Cir. 2014) (memorandum opinion).

         Vance filed the pending § 2255 motion on June 24, 2016, arguing that he was entitled to have his conviction on Count 1 vacated under Johnson. Although the government initially argued Vance's claim was time-barred, second or successive, and that he otherwise was not entitled to relief, it has since withdrawn those arguments. ECF No. 135. The government now agrees that changes in the law since Johnson was decided require that Vance's conviction and the mandatory 30-year sentence on Count 1 be vacated.

         DISCUSSION

         I. 28 U.S.C. § 2255

         A petitioner may obtain relief via 28 U.S.C. § 2255 by showing (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 the sentence; (3) that the sentence was in excess of that authorized by law; or (4) that the sentence is otherwise subject to collateral attack. Vance argues that following the decisions in Johnson and its progeny, the part of his sentence based on 18 U.S.C. § 924(c)(3) was imposed in violation of the Constitution.

         When Vance was sentenced on Count 1, the offense of carrying a destructive device in relation to a crime of violence carried a 30-year mandatory sentence, to be imposed consecutively to any other sentence. ECF No. 97 at 6; 18 U.S.C. § 924(c)(1) (1994). "Crime of violence" was defined as an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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