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Allred v. United States

United States District Court, M.D. North Carolina

April 24, 2018

JIMMY LEE ALLRED, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE

         Petitioner Jimmy Lee Allred, a federal prisoner, brings a Motion (Doc. 120) and Amended Motion (Doc. 125) to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In 1990, a jury in this court convicted Petitioner of felony retaliating against a witness in violation of 18 U.S.C. § 1513(a). Petitioner served his sentence for that conviction but, four years later, a jury in this court convicted Petitioner of one count of possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). He then received a sentence of 264 months of imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

         Petitioner's Presentence Report (Doc. 116) reflects the bases for the ACCA enhancement were (1) a prior North Carolina conviction for felony assault with a deadly weapon with intent to kill inflicting serious injury (id. ¶ 24), (2) a prior North Carolina conviction for felony possession with intent to sell and deliver cocaine (id. ¶ 28), and (3) the prior conviction in this court for felony retaliating against a witness (id. ¶ 30).

         Petitioner unsuccessfully sought relief through a direct appeal and two prior motions (Doc. 59, 92) under § 2255 before filing a motion with the United States Court of Appeals for the Fourth Circuit seeking authorization to file a second or successive § 2255 motion under 18 U.S.C. §§ 2244 and 2255(h). In that filing, he claimed that his sentence under the ACCA is longer valid following Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2015). The Fourth Circuit granted the authorization based on Petitioner having made a prima facie showing that Johnson might affect his case.

         Following the Fourth Circuit's authorization, Petitioner filed a paper-writing which the court construed as his current motion (Doc. 120) under § 2255. In that filing, he states that he seeks to raise a claim that his “prior conviction for witness retaliation is under a broad statute that punishes one for force against property as well as persons” and that “under Descamps v. United States [570 U.S. 254 (2013)], the statute is not divisible and, therefore, no longer a crime of violence in light of Johnson.” (Doc. 120 at 1.) “Specifically, [the statute] leaves open the possibility [Petitioner] was convicted for retaliating by damaging the victim[']s property rather than [her] person.” (Id.) The court later docketed an Amended Motion (Doc. 125) which it received from the Fourth Circuit. The Amended Motion, which Petitioner originally submitted to the Fourth Circuit as part of his motion seeking authorization to file his successive § 2255 Motion, raises a single claim for relief which states only that Petitioner was sentenced under the ACCA based in part on a prior conviction under what was then 18 U.S.C. § 1513(a)(1), which stated that “[w]hoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with intent to retaliate against any person for” being a witness, party, or informant in federal proceedings may be fined and imprisoned for up to ten years.[1](Doc. 125 at 4.)[2] Petitioner does not explicitly identify any problem with this predicate conviction in the portion of the Amended Motion listing grounds for relief. However, considering Petitioner's pleadings as a whole, Petitioner sets out a single ground for relief alleging that his conviction for retaliating against a witness is not a violent felony, and therefore not a valid ACCA predicate following Johnson.

         Under the ACCA, 18 U.S.C. § 924(e)(1), a defendant is subject to enhanced sentencing penalties if he has three prior convictions for a “violent felony or a serious drug offense, or both, committed on occasions different from one another . . . . ” A crime is a serious drug offense for purposes of 18 U.S.C. § 924(e) if it is one “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” and is a crime “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A))(ii). Before Johnson, a crime was a “violent felony” if it is punishable by imprisonment of more than a year and “has as an element the use, attempted use, or threatened use of physical force against the person of another” (hereinafter “force clause”), “is burglary, arson, or extortion” (hereinafter “enumerated offenses clause”), or involves the use of explosives, or “otherwise involves conduct that presents a serious potential risk of physical injury to another” (hereinafter “residual clause”). § 924(e)(1)(B)(i) and (ii). However, Johnson invalidated as unconstitutionally vague the residual clause of the statute. Johnson, 135 S.Ct. at 2563. The remainder of the ACCA stayed intact. Petitioner contends that the challenged retaliation predicate was applied in his case under the stricken residual clause, that § 1513(a)(1) is an indivisible statute which allows for convictions based on harm to property or threats to harm property, and, therefore, that it cannot now apply in his case under the force clause of the ACCA.[3]Therefore, if he is correct, his retaliation conviction is not a proper ACCA predicate and he now has only two of three predicates necessary to support his enhanced sentence.

         Respondent responded that 18 U.S.C. § 1513(a)(1) is, in its view, a divisible statute to which the court can apply the modified categorical approach described in Shepard v. United States, 544 U.S. 13 (2005), and Mathis v. United States, U.S.__, 136 S.Ct. 2243 (2016). This approach allows the court to use the indictment in the retaliation case to determine whether the portion of the statute under which Petitioner was convicted is a violent felony under the ACCA. Because that indictment alleges that Petitioner caused bodily injury to the witness against whom he retaliated, Respondent asserts that Petitioner was convicted only under the portion of the statute relating to bodily injury. It also maintains that this portion of the statute satisfies the force clause of the ACCA in that it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). Therefore, Respondent concludes that Petitioner's prior conviction under § 1513(a)(1) remains a violent felony under the ACCA. Respondent does not contest Petitioner's argument that he prevails if the statute is not divisible.

         Petitioner maintained in his Reply (Doc. 141) that he still prevails if the court uses the modified categorical approach espoused by the Government because even the bodily injury portion of § 1513(a)(1) allows for convictions based on conduct deemed not to be a use of physical force for purposes of the ACCA. The court thereafter ordered further briefing on this issue in light of United States v. Middleton, 883 F.3d 485 (4th Cir. 2018), which was decided after the filing of Petitioner's Reply. Both parties then filed supplemental briefs maintaining their respective positions following Middleton. (Docs. 147, 148.) The Government continues to assert that the statute is not divisible and that the bodily injury portion of the statute requires sufficient use of physical force. Petitioner insists that the statute is not divisible and that, even if it is, the bodily injury portion does not require a sufficient use of physical force.

         Regarding the divisibility of § 1513(a)(1), the parties agree that Petitioner is entitled to relief if the statute is not divisible. Therefore, the court need not make a final decision on divisibility unless the Government prevails on the question of whether the bodily injury portion of the statute requires the use of physical force.

         Assuming purely for the purposes of discussion that the § 1513(a)(1) is divisible as discussed in Mathis, the statute sets out four alternative crimes based on four distinct harms -bodily injury, a threat of bodily injury, damage to tangible property, and a threat of damage to tangible property. Two of these harms, damage to tangible property and a threat of damage to tangible property, cannot possibly support an ACCA predicate under the force clause because they very clearly do not involve the “use, attempted use, or threatened use of physical force against the person of another.” However, as an exhibit to its Response (Doc. 139), the Government provided the indictment from Petitioner's prosecution for retaliating against a witness. (Id., Attach. 1.) The indictment alleged that Petitioner “knowingly engaged in conduct and thereby caused bodily injury to Monica Michelle Warner, with intent to retaliate against Monica Michelle Warner for attendance as a witness and testimony given in an official proceeding of the United States District Court for the Middle District of North Carolina.” (Id.) Based on that document, which the court may review as part of applying the modified categorical approach under Shepard, the Government asserts that Petitioner's conviction was clearly based on bodily injury to a witness and not on any type of property damage. Petitioner does not deny this or claim that his conviction fell under any other portion of the statute. Therefore, the court finds that this was indeed the basis for his prior conviction for retaliating against a witness in this court.

         The conclusion that Petitioner's prior conviction involved the portion of § 1513(a)(1) prohibiting retaliation that causes bodily injury to a witness does not end matters. This is because the court, having defined the nature of Petitioner's conviction, must still determine whether that “offense ‘sweeps more broadly' than the ACCA's definition of a violent felony.” Middleton, 883 F.3d at 488 (citing Descamps v. United States, 570 U.S. 254, 261 (2013)). If so, “the offense does not qualify as an ACCA predicate.” Id.

         As set out in Middleton,

The ACCA's force clause requires “the use, attempted use, or threatened use of physical force against the person of another.” [18 U.S.C. § 924(e)(2)(B)(ii)] (emphasis added). Congress did not define the term “physical force.” Johnson v. United States, 559 U.S. 133, 138(2010) (hereinafter “Johnson I”). But the Supreme Court gave the phrase its ordinary meaning: “force exerted by and through concrete bodies” as opposed to “intellectual force or emotional force.” Id. In Johnson I, the Court further explained that “because the term ‘physical force' contributes to the definition of a ‘violent felony, ' it is understood to mean ‘violent force - that is, force capable of causing physical pain or injury to another person.'” United States v. Reid, 861 F.3d 523, 527 (4th Cir. 2017) (quoting Johnson I, 559 U.S. at 140). Therefore, “physical force” under the ACCA's force clause must be both physical (exerted through concrete bodies) and violent (capable of causing pain or injury to another). De minimus physical force, such as mere offensive touching, is insufficient to trigger the ACCA's force clause because it is not violent.

Id. at 488-89 (parallel citations deleted). Further, the fact that a physical injury occurs does not mean that a defendant used violent force. “‘[A] crime may result in death or serious injury without involving the use of physical force.'” Id. at 491 (quoting United States v. Covington, 880 F.3d 129, 134 n.4 (4th Cir. 2018)).[4] The causation of bodily injury does not necessarily equal a use of violent force sufficient to satisfy the force ...


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