No Relief for ‘Gravely Unjust’ ACCA Sentence

Although the Charlottesville U.S. Dis­trict Court is troubled by defendant’s 2005 sentencing under the Armed Career Criminal Act, based on prior “violent fel­ony” convictions from over 45 years ago, the court cannot grant relief from defen­dant’s mandatory 15-year sentence for possession of a firearm and marijuana; the U.S. Supreme Court’s 2015 decision invalidating the “residual clause” of the ACCA does not apply in this case.

Review of the transcript of defendant’s sentencing hearing clearly demonstrates that he was sentenced under the “enu­merated clause” of the ACCA, not the residual clause. Because the Supreme Court decision, Johnson v. U.S., 135 S.Ct. 2551 (2015), left the enumerated clause intact, that decision has no bearing on defendant’s case. Without the aid of Johnson’s retroactive ruling, defendant’s successive petition is procedurally barred by 28 U.S.C. § 2255(f) because it does not rely on a new rule of constitutional law, made retroactive on collateral review.

The government asserts that defen­dant’s motion does not properly rely on Johnson because he has not proven that his underlying offense qualified only un­der the residual clause. Under the gov­ernment’s theory, a petitioner bears the burden of proving that their ACCA en­hancement was predicated solely on the residual clause, and thus was invalidated by the retroactive Johnson ruling.

Enumerated clause

This assertion mirrors an argument made in U.S. v. Winston, (W.D. Va. Sept. 16, 2016), and based on the same reason­ing, I disagree with the government’s po­sition. I find that, in order to establish a case under Johnson, a petitioner need not demonstrate that his underlying offense qualified only under the residual clause; rather, he must prove that he may have been sentenced using the residual clause because the sentencing record is unclear.

Nevertheless, even using the proper standard of review, defendant’s petition is procedurally barred by 28 U.S.C. § 2255(f) because a review of the sentencing tran­script demonstrates unequivocally that defendant was sentenced under the enu­merated clause. At the sentencing hear­ing, the parties argued exclusively about whether defendant’s prior convictions qualified as burglaries under the ACCA. The government’s supplemental briefing argued that defendant’s prior convictions qualified as generic burglaries; there was no mention of the residual clause.

Because defendant’s sentence was en­hanced using the enumerated clause alone, Johnson has no bearing on his peti­tion. Defendant does not rely on a newly recognized right made retroactive by the Supreme Court and his claim is procedur­ally barred.

Defendant will continue to serve a 15- year sentence, despite the fact that his non-ACCA guidelines recommended a sentence of 18 to 24 months. When defen­dant was 19 years old, he and his broth­ers burglarized a garage and storehouse on three consecutive nights and stole roughly $1,100 worth of merchandise. Thirty-four years later, after no signifi­cant intervening criminal history, those convictions were used to adjudge him an armed career criminal. Forty-five years later, he remains in prison without a le­gal remedy. I found defendant’s sentence gravely unjust when it was issued in 2005, and I remain steadfast in that posi­tion today. The procedural roadblocks cre­ated by statute restrict the court’s ability to consider the merits of defendant’s pe­tition, and are the only reason defendant remains in prison today.

U.S. v. Crawford (Moon) No. 3:02cr42, Nov. 22, 2016; USDC at Charlottesville, Va.; Jennifer R. Bockhorst, AUSA; Fay F. Spence, FPD. VLW 016-3-563, 6 pp.