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United States v. Townsend

United States Court of Appeals, Fourth Circuit

March 30, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
COREY FLEAMON TOWNSEND, Defendant-Appellant.

          Argued: December 5, 2017

          Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00147-WO-1; 1:13-cv-00048-WO-JEP)

         ARGUED:

          Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Appellant.

          Kyle David Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

         ON BRIEF:

          Sandra J. Hairston, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

          Before NIEMEYER and DUNCAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

          SHEDD, Senior Circuit Judge:

         Corey Townsend filed a motion under 28 U.S.C. § 2255 challenging the lawfulness of his sentence under the Armed Career Criminal Act ("ACCA") in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the ACCA was unconstitutionally vague. The district court dismissed Townsend's motion. Because Townsend's prior conviction for North Carolina assault with a deadly weapon with intent to kill inflicting serious injury is categorically a violent felony under the force clause of the ACCA, we affirm.

         I.

         In 2010, Townsend was indicted for possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). The indictment also charged Townsend as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), alleging three prior instances of predicate felony conduct: (1) a 1998 conviction for robbery with a firearm; (2) 1998 convictions for assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI") and assault with a deadly weapon inflicting serious injury ("AWDWISI"); and (3) 1989 convictions for breaking and entering, breaking and entering of a motor vehicle, larceny, possession of burglary tools, and possession of stolen goods. Prior to trial, Townsend pled guilty to the § 922(g)(1) charge.

         Before sentencing, probation prepared a presentence investigation report ("PSR") recommending that Townsend receive an enhanced sentence under the ACCA because of his three prior instances of felony conduct. Townsend challenged his classification as an armed career criminal at sentencing, but he did not contest the representation in the PSR that he was convicted of AWDWIKISI or whether AWDWIKISI was categorically a violent felony. Over Townsend's objection, the district court found that Townsend qualified for the enhanced sentence under the ACCA based on his three prior instances of qualifying felony conduct and sentenced Townsend to 225 months of incarceration. Townsend appealed both his conviction and sentence, and we affirmed. United States v. Townsend, 453 Fed.Appx. 425 (4th Cir. 2011).

         In 2013, Townsend filed a § 2255 motion challenging his sentence and specifically challenging the applicability of the ACCA. In 2015, the United States Supreme Court issued its opinion in Johnson, and Townsend amended his § 2255 motion to add a Johnson claim. The Government moved to dismiss and produced state court sentencing sheets to show each of Townsend's predicate felonies under the ACCA. After Townsend amended his complaint, a magistrate judge issued a Report and Recommendation ("R&R") recommending dismissal of Townsend's ยง 2255 petition but failing to specifically address whether Townsend's two North Carolina assault convictions qualified as ACCA predicates. The district court adopted the R&R, declined to issue a certificate of appealability, and dismissed the petition with prejudice. Townsend then appealed, and this court ...


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