Virginia Lawyers Weekly VA Lawyers Weekly
A Roanoke U.S. District Court grants the United States’ motion to dismiss defendant’s 28 U.S.C. § 2255 motion, contending that her sentence under the Armed Career Criminal Act was invalid post Johnson v. United States.
In Johnson, decided in 2015, the court found that one phrase of the ACCA definition of “violent felony” was unconstitutionally vague. Defendant was sentenced under ACCA in 2004 and therefore a stiffer sentence was imposed, namely, the maximum period of post-incarceration supervision for her is five years but she would have received a maximum sentence of three years of supervision had she not met the definition of violent felon under ACCA. ACCA provides for an enhanced sentence if a defendant is convicted of a firearm offense and has at least three previous convictions by any court, for a violent felony or a serious drug offense, or both, committed on occasions different from one another. Prior to Johnson, the term “violent felony” was defined in ACCA as “any crime punishable by imprisonment for a term exceeding one year…that…(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The bolded phrase above is referred to as the “enumerated crimes clause;” the phrase following “or” is referred to as the “residual.” The Johnson court found that the residual was vague and unconstitutional.
Defendant was sentenced under ACCA on Feb. 26, 2004, after pleading guilty to possession of a firearm having been previously convicted of a felony, in violation of 18 U.S. C. §§ 922(g)(1). She was sentenced to 180-months imprisonment pursuant to ACCA. Defendant also had 23 prior convictions of burglaries in Georgia in 2000. In her present § 2255 motion, she contends that the Georgia statute under which she was convicted defined the crime of burglary broader than generic burglary. She argues that the elements of the ACCA statute are not divisible, thus preventing the use of the modified categorical approach to determine if her crimes in fact mirrored a generic burglary.
The 11th Circuit has determined that the alternative locational elements of the Georgia burglary statue in effect at the time of defendant’s prior convictions were divisible and that her prior Georgia burglary convictions each constituted a violent felony under ACCA’s enumerated crime clause. Given that the defendant’s conviction is based on the enumerated crime clause, the court found that defendant suffered no prejudice.
The United States’ motion to dismiss is granted and the § 2255 motion dismissed.
U.S. v. Stevenson (Jones, James) No. 1:03cr00053-001, June 22, 2017; USDC at Abingdon, VA.; Jennifer R. Bockhorst, AUSA; Nancy C. Dickenson for defendant. (VLW 017-3-331).
