A Big Stone Gap U.S. District Court grants this motion under 28 U.S.C. § 2255, vacates defendant’s sentence and orders resentencing under Johnson v. U.S., 135 S.Ct. 2551 (2015), for his conviction of possession of a firearm as a convicted felon, for which he received the mandatory minimum 15-year sentence under the Armed Career Criminal Act.
Defendant’s predicate offenses under the ACCA were three prior Virginia burglary convictions 20 years earlier. Earlier, this court concluded the government failed to show that two of those burglaries, of a restaurant and a corner market, were of buildings or structures, in the absence of any indication in the charging documents that the businesses were conducted in buildings or structures. However, the court concluded that defendant’s conviction for a third burglary, involving a blacksmith business, met the requirements for a predicate offense, based on the word “shop” used in the indictment for that charge. The court sentenced defendant to 27 months in prison.
The government appealed. A majority of a 4th Circuit panel ruled that defendant’s convictions of the restaurant and corner market burglaries did qualify as predicate offenses under the ACCA. The appeals court denied rehearing en banc by a 7-7 tie vote, and the Supreme Court denied certiorari.
On remand, the court resentenced defendant to the required 180 months imprisonment under the ACCA. The 4th Circuit denied defendant’s motion under 28 U.S.C. § 2255. However, it subsequently granted leave to defendant to file a successive § 2255 motion, finding defendant had made a prima facie showing that the new rule of constitutional law announced in Johnson, held to be retroactive to cases on collateral review, may apply to his case.
The 4th Circuit held in Castendet-Lewis v Sessions, 855 F.3d 253 (4th Cir. 2017), that in light of Mathis v. U.S., 136 S.Ct. 2243 (2016), the Virginia burglary statute falls outside the scope of a generic burglary.
Post-conviction relief is available to defendant, even though he did not raise the constitutionality of the ACCA’s residual clause in his direct appeal. Moreover, a defendant can show cause to overcome any such default where the claim is so novel that its legal basis was not reasonably available to counsel. Defendant has shown prejudice, since the ACCA subjected him to a 15-year sentence, when otherwise the maximum sentence would have been 10 years.
Motion to correct sentence granted.
U.S. v. Foster (Jones) No. 2:09cr17, June 19, 2017; USDC at Big Stone Gap, Va.; Jean B. Hudson, AUSA; Nancy C. Dickenson, AFPD. VLW 017-3-320, 7 pp."