United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge
MATTER is before the Court on Petitioner's Motion to
Vacate, pursuant to 28 U.S.C. § 2255, (Doc. No. 1), and
on the Government's Response in Support, (Doc. No. 8).
Petitioner is represented by Joshua Carpenter of the Federal
Public Defenders of Western North Carolina. For the reasons
that follow, the motion to vacate will be granted.
April 10, 2013, Petitioner Anthony Watson pled guilty in this
Court to four counts of bank robbery, 18 U.S.C. §
2113(a), and to one count of possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g). (Crim. Case No.
3:12-cr-390-MOC-l, Doc. No. 11: Acceptance and Entry of
Guilty Plea). As to the possession of a firearm conviction,
Petitioner had three prior convictions under Virginia law for
offenses that qualified as "violent felonies" under
the Armed Career Criminal Act ("ACCA"): one 1988
conviction for robbery, which "is a common law
crime" in Virginia, Chappelle v. Commonwealth of
Va.. 504 S.E.2d 378, 379 (Va. Ct. App. 1998), and two
1996 convictions for bank robbery. (Crim. Case No.
3:12-cr-390-MOC-l, Doc. No. 19 at ¶¶ 62, 80, 82,
83: PSR). Therefore, based on the ACCA enhancement,
Petitioner faced a statutory mandatory minimum of 15 years, a
maximum of life, and a guidelines range of 188 to 235 months.
(Id. at ¶¶ 105, 106). On July 1, 2014,
this Court imposed a sentence of 235 months. (Id.,
Doc. No. 24: Judgment). Petitioner appealed his conviction
and sentence, and the Fourth Circuit Court of Appeals
dismissed the appeal on February 6, 2015. (Id., Doc.
14, 2016, Petitioner filed the instant motion to vacate his
sentence, arguing that he was sentenced as an armed career
criminal in violation of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Specifically, Petitioner contends that he was improperly
sentenced as an armed career criminal because the residual
clause of the career-offender guideline is unconstitutionally
vague and his prior convictions under Virginia law-one for
robbery and two for bank robbery-only qualified as predicate
convictions under the ACCA based on the now-invalid residual
clause. Petitioner contends that, in light of
Johnson, he no longer has three predicate
convictions supporting his classification as an armed career
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with "any attached exhibits and the record of prior
proceedings . . ." in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
ACCA provides for a mandatory-minimum term of 15 years in
prison for any defendant who violates 18 U.S.C. § 922(g)
and who has three previous convictions for a "violent
felony" or a "serious drug offense." 18 U.S.C.
§ 924(e)(1). "Violent felony" is defined to
include "any crime punishable by imprisonment for a term
exceeding one year" that "(i) has as an element the
use, attempted use, or threatened use of physical force
against the person of another; or (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." Id. § 924(e)(2)(B). In
2015, the Supreme Court held in Johnson that a prior
provision defining "violent felony" to include a
prior conviction for an offense that "otherwise involves
conduct that presents a serious potential risk of physical
injury to another, " known as the "residual
clause" of the ACCA's "violent felony"
definition, was void for vagueness. Johnson, 135
S.Ct. at 2556, 2558. The Supreme Court also held that the
clause was void "in all its applications."
Id. at 2561. The Court did not strike the remainder
of the "violent felony" definition, including the
four enumerated offenses and the "force clause" of
§ 924(e)(2)(B)(i). Id. at 2563.
result of Johnson, a defendant who was sentenced to
a statutory mandatory-minimum term based on a prior
conviction that satisfies only the residual clause of the
"violent felony" definition is entitled to relief
from his sentence. See United States v. Newbold, 791
F.3d 455, 460 (4th Cir. 2015) (holding that the improper
imposition of an ACCA-enhanced sentence is an error that is
cognizable in a motion to vacate filed under 28 U.S.C. §
2255). Where, however, the prior convictions upon which his
enhanced sentence is based qualify as violent felonies under
the "force clause" or qualify as one of the four
enumerated offenses, no relief is warranted. On April 18,
2016, the Supreme Court held in Welch v. United
States, 136 S.Ct. 1257 (2016), that Johnson is
retroactively applicable on collateral review to claims that
the defendant was improperly sentenced as an armed career
Petitioner argues that his prior convictions for convictions
under Virginia law-one for robbery and two for bank
robbery-only qualified as "violent felonies" only
under the ACCA's now-invalidated residual clause and that
he is entitled to sentencing relief under Johnson.
In its response, the Government states that it agrees that
Petitioner's Virginia 1988common law robbery conviction no
longer qualifies as an ACCA predicate and Petitioner
therefore no longer has three qualifying predicates for
purposes of being sentenced under the ACCA. After considering
the parties' arguments, the Court agrees that Petitioner
no longer has three qualifying predicates for purposes of
being sentenced under the ACCA. As the Government notes, the
Fourth Circuit recently held that Virginia's crime of
common law robbery no longer falls within the definition of
"violent felony" under the ACCA because it does not
meet the requirements of the force clause, nor is it an
enumerated offense under the Act. United States v.
Winston. 850 F.3d 677, 685 (4th Cir. 2017). Because the
ACCA requires three qualifying convictions, Petitioner no
longer qualifies for application of a fifteen-year mandatory
sentence under the ACCA. Id.
Petitioner's motion to vacate will be granted and
Petitioner is, therefore, entitled to be resentenced without
application of an enhanced sentence under the
reasons stated herein, the Court grants Petitioner's
motion to vacate, and Petitioner is entitled to be