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Linney v. United States

United States District Court, W.D. North Carolina, Statesville Division

May 21, 2019

RUSSELL JAVON LINNEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogburn Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 7). Also pending are the Respondent's Motion to Dismiss, (Doc. No. 9), Petitioner's Motion to Strike, (Doc. No. 15), and Petitioner's Motion for Summary Judgment, (Doc. No. 24).

         I. BACKGROUND

         In the underlying criminal case, Petitioner pled guilty straight up to a single count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). See (5:13-cr-65, Doc. No. 44).

         The Probation Office issued the original Presentence Investigation Report (“PSR”) calculated Petitioner's offense level as 25 and criminal history category of IV, with a guidelines range of 84 to 105 months' imprisonment and between one and three years of supervised release without any Chapter Four enhancements. (Id., Doc. No. 21).

         The Government filed objections arguing that Petitioner qualifies for enhanced sentencing under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he has three or more prior violent felony convictions that were committed on different occasions. (Id., Doc. No. 22).

         Petitioner's counsel objected to the ACCA designation, arguing that he had only two separate prior violent felony convictions that were committed on different occasions because the geographic location, date of the offense, time of the offense, and nature of the crime were all the same for two of the three convictions. (Id., Doc. No. 23).

         The final PSR included the ACCA enhancement. It concluded that Petitioner qualifies as an armed career criminal because the offense of conviction is a violation of § 922(g) and he has at least three prior convictions for a violent felony or serious drug offense, or both, that were committed on different occasions, i.e., second-degree burglary convictions in North Carolina cases 11CRS51150, 11CRS51151, and 11CRS50296. (Id., Doc. No. 24 at ¶ 26). Three levels were deducted for acceptance of responsibility resulting in a total offense level of 31. (Id., Doc. No. 24 at ¶¶ 27-29). The PSR's criminal history section scored seven criminal history points and two more points were added because Petitioner committed the instant offense while under a criminal justice sentence. (Id., Doc. No. 24 at ¶¶ 50, 51). This resulted in a total of nine criminal history points and a criminal history category of IV, however, the criminal history category for career offenders is VI. (Id., Doc. No. 24 at ¶ 52). The resulting minimum mandatory sentence was 15 years' imprisonment, and the guidelines range was 188 months to 235 months' imprisonment followed by between two and five years of supervised release. (Id., Doc. No. 24 at ¶¶ 89, 92).

         Petitioner filed a pro se letter objecting to the final PSR arguing that the three burglary convictions arose out of only two distinct criminal episodes, because two of them occurred “simultaneously” on December 31, 2009, and that Petitioner had co-defendants for those cases whereas the cases cited by the United States involved only a single defendant which would have made simultaneous offenses by co-defendants impossible. (Id., Doc. No. 26 at 3).

         Defense counsel filed a Sentencing Memorandum and Supplemental Objections to the PSR on Petitioner's behalf. (Id., Doc. No. 27). Counsel argued that the Government could not sustain its burden of proof that the ACCA enhancement requires because the Shepard-approved[1]documents do not conclusively demonstrate that Petitioner himself committed the two second-degree burglaries on December 31, 2009, on occasions different from one another “especially since at least two (2) co-defendants were involved.” (Id., Doc. No. 27 at 2).

         At the sentencing hearing on November 3, 2014, Petitioner stated that he was fully satisfied with the services of his attorney and had pleaded guilty freely and voluntarily. (Id., Doc. No. 45 at 2-3). In arguing that the two December 31, 2009 offenses should be counted as a single conviction, defense counsel argued:

I did go to Statesville Superior Court. I wasn't able to pull - they couldn't locate the codefendants. One of the codefendant[s] was a Mr. Patrick Gardner. But I was able to make a copy of the restitution sheet from Mr. Linney's file. And it indicates that … the codefendant is a Mr. Patrick Wagner.…
Unfortunately, they were not able to locate the file for me. But I have shown the government a copy of the restitution worksheet indicating there are codefendants involved….
[E]even though the indictment is not clear, it appears Iredell County, when they bring indictments against codefendants, everybody appears to be charged as a principal.

(Id., Doc. No. 45 at 13).

         The Government argued that the certified North Carolina judgments show that the two December 31 burglaries should count as separate offenses because they each had a different victim and they occurred at different locations, and the facts that they were close in time and geographically close does not disqualify them from being separate and distinct criminal episodes. The only issue, the Government argued, was whether there were possible codefendants and that, to do so would require the Court to go beyond the Shepard-approved documents and look at the restitution sheet that refers to joint and several restitution; “as far as we know from the Shepard-approved documents, it could be a typo, it could be an oversight, it could be an order of joint and several liability with regard to restitution in another case that he was previously sentenced for.” (Id., Doc. No. 45 at 18-19).

         The Court found that “It does not appear that these were simultaneous offenses, but rather were sequential, as would be expected on burglary victim houses, albeit located near one another;” overruled defense objection and sentenced as ACCA. (Id., Doc. No. 45 at 21). The Court specifically found that the restitution pages' reference to joint and several liability “do not rise to the level of preponderance of the evidence in undermining the otherwise pertinent facts about the two offenses in question….” (Id., Doc. No. 45 at 23).

         The Court therefore adopted the PSR including the ACCA enhancement and sentenced Petitioner at the top of the guidelines to 235 months' imprisonment followed by 5 years of supervised release. (Id., Doc. No. 29).

         The issue on direct appeal was “whether two burglaries that served as part of the predicate for [Petitioner's] Armed Career Criminal Act … sentencing enhancement occurred on different occasions.” United States v. Linney, 819 F.3d 747 (4th Cir. 2016). This Court found that the ...


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