United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on petitioner's motion to
vacate, set aside, or correct sentence, made pursuant to 28
U.S.C. § 2255 (DE 34, 53), which challenges
petitioner's Armed Career Criminal Act (ACCA) sentencing
enhancement in light of Johnson v. United States,
135 S.Ct. 2551 (2015). Also before the court is the
government's motion to dismiss, made pursuant to Federal
Rule of Civil Procedure 12(b)(6). (DE 60). The issues raised
are ripe for ruling. For the reasons that follow, the court
grants petitioner's motion and denies the
government's motion and sets the matter for resentencing.
21, 2004, petitioner pleaded guilty, pursuant to a written
plea agreement, to one count of felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924. Prior to sentencing, the United States Probation Office
prepared and published a Presentence Investigation Report
(“PSR”), which describes in detail
petitioner's background, including his criminal history.
Based on petitioner's criminal history, the PSR
determined that petitioner was an “armed career
criminal” and that his statutory minimum sentence was
15 years, under 18 U.S.C. § 924(e)(1). (DE 64,
¶¶ 57, 61). In petitioner's criminal history,
the PSR identified one North Carolina felony conviction for
common law robbery, one North Carolina felony conviction for
“breaking and entering”; two North Carolina
felony convictions for “Assault with a Deadly Weapon
With Intent to Kill/Inflicting Serious Injury, ”
(hereinafter “AWDWIKISI”); and one North Carolina
felony conviction for “Second Degree Murder.”
(Id. ¶¶ 13, 15, 16). The court sentenced
petitioner on November 18, 2004, to a term of imprisonment of
192 months. (See DE 25). Petitioner appealed, and
the Fourth Circuit dismissed the appeal.
filed the instant motion to vacate on October 19, 2015, as
amended March 21, 2016, arguing that he can no longer be
classified as an Armed Career Criminal because he does not
have qualifying predicate convictions following
Johnson. The government moves to dismiss on the
basis that petitioner qualifies as an Armed Career Criminal
due to petitioner's convictions for breaking and
entering, assault with a deadly weapon with intent to kill
inflicting serious injury, and second degree murder. In
response, petitioner contends that the assault and murder
convictions do not constitute predicate convictions for
purposes of the Armed Career Criminal Act.
December 8, 2016, the court held in abeyance the pending
motions, pending receipt of Shepard materials that
may bear on the issue of whether petitioner's AWDWIKISI
convictions could be counted separately as ACCA predicates.
The court reasoned that petitioner's AWDWIKISI
convictions qualified as violent felonies under the ACCA, but
that based on the information in the PSR the court could not
determine that they were “committed on occasions
different from one another.” 18 U.S.C.A. §
924(e)(1). The government now has supplemented the record
with Shepard materials, and petitioner has filed a
Standard of Review A petitioner seeking relief pursuant to 28
U.S.C. § 2255 must show that “the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the Court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” § 2255(a). “Unless the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court
shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto.” § 2255(b).
Breaking and Entering
invalidated the “residual clause” contained in
the definition of “violent felony” in the ACCA.
135 S.Ct. at 2555-56, 2563 (quoting 18 U.S.C. §
924(e)(2)(B)). Johnson, however, “does not
call into question application of the [ACCA] to the four
enumerated offenses or the remainder of the [ACCA's]
definition of a violent felony.” Id. at 2563.
One of those enumerated offenses that constitutes a
“violent felony” under the ACCA is
“burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). It
is well-established in this circuit that the North Carolina
offense of breaking and entering qualifies as burglary.
See United States v. Mungro, 754 F.3d 267, 272 (4th
Cir. 2014). Accordingly, Johnson has no impact on
the status of petitioner's breaking and entering
conviction as an Armed Career Criminal predicate.
Common law robbery
government agrees with petitioner that petitioner's prior
conviction for common law robbery no longer constitutes a
valid ACCA predicate conviction. See United States v.
Welch, 136 S.Ct. 1257 ...