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Suleiman v. United States

United States District Court, E.D. North Carolina, Western Division

August 6, 2019

BASIM AMIR SULEIMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner's motion to vacate his sentence under 28 U.S.C. § 2255. [DE #34]. The government responded by filing a motion to dismiss, [DE #43], to which petitioner filed a response. [DE #46]. The time for further filing has expired, and this matter is ripe for adjudication.

         BACKGROUND

         On April 14, 2003, petitioner pled guilty, pursuant to a written memorandum of plea agreement, to possession of a firearm by a convicted felon and aiding and abetting, in violation of 18 U.S.C. § 922(g)(1), § 924, and § 2 (Count One) and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (Count Six). [DE #18]. On July 22, 2003, the court sentenced petitioner to a total term of imprisonment of 188 months and a supervised release term of 5 years. [DE #18] . Petitioner did not appeal. On or about December 8, 2003, petitioner filed his first motion pursuant to 28 U.S.C. § 2255, [DE #20], which was dismissed. [DE #28 and #29]. Petitioner, by and through counsel, filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on June 26, 2016, in light of Johnson v. United States, 135 S.Ct. 2551 (2015), arguing that as his predicate offenses no longer qualify as violent felonies, he is no longer an armed career criminal under the Armed Career Criminal Act ("ACCA"), and his sentence therefore exceeds the statutory maximum for possession of a firearm by a felon. [DE #34 at 4 ] . The Fourth Circuit granted authorization for petitioner to file a second or successive § 2255 motion. [DE #35].

         Petitioner has met the "in custody" requirement of a § 2255 motion because he was in custody at the time of filing his initial § 2255 motion on June 26, 2016.[1] See Woodfolk v. Maynard, 857 F.3d 531, 539-40 (4th Cir. 2017) ("It is well settled that the 'in custody' requirement applies at the time a petition is filed.") (citing Carafas v. LaVallee, 391 U.S. 234, 238-39 (1968); Griffin v. Bait. Police Dep't, 804 F.3d 692, 697 (4th Cir. 2015)). Additionally, this motion is timely pursuant to 28 U.S.C. § 22255(f)(3).

         COURT'S DISCUSSION

         I. Application of the ACCA

         Petitioner was sentenced as an armed career criminal and argues his underlying predicate offenses, including three New Jersey first degree robbery convictions and one abuse/neglect conviction, are no longer violent felonies under the ACCA.[2] [PSR at ¶¶ 17-19]. In the Johnson decision, the Supreme Court of the United States invalidated the residual clause found in 18 U.S.C. § 924(e) (2) (B) (ii) of the ACCA. Johnson, 135 S.Ct. at 2557. In Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court held the rule pronounced in Johnson is retroactively applicable on collateral review. In light of Johnson and Welch, the court must now consider whether petitioner's prior convictions are violent felonies under the force clause, which provides that a crime must have "as an element the use, attempted use, or threatened use of physical force against the person of another" to qualify as a violent felony.[3] 18 U.S.C. § 924(e) (2) (B) (i) .

         In making this determination, a court must apply the categorical or modified categorical approach. Descamps v. United States, 570 U.S. 254, 257-62 (2013). "Under the categorical approach, [the court] examine[s] whether a state crime has as an element the 'use, attempted use, or threatened use of physical force against the person of another,' and do[es] not consider the particular facts underlying the defendant's conviction." United States v. Burns-Johnson, 864 F.3d 313, 316 (4th Cir. 2017) (citing Descamps, 570 U.S. at 258-61).

         "[T]he modified [categorical] approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps, 570 U.S. at 260. The modified categorical approach allows the court to examine approved documents, including an indictment, plea agreement, or jury instructions to determine which statutory alternative is implicated by the predicate offense. Id. at 257, 263. "The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime." Id. at 263.

         To determine which approach to use, the court must first determine whether a statute is indivisible or divisible. The categorical approach is applied to an indivisible statute, and the modified categorical approach is applied to a divisible statute. Id. at 257-58.

         A statute is divisible when it "consists of multiple, alternative elements creating several different crimes, some of which would match the generic federal offense and others that would not." United States v. Simmons, 917 F.3d 312, 319 n.3 (4th Cir. 2019) (quoting Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir. 2014) (internal citations and quotation marks omitted). A statute is indivisible when it "do[es] not include alternative elements establishing 'multiple, alternative versions of the crime.'" Burns-Johnson, 864 F.3d at 316 n. 1 (quoting Descamps, 570 U.S. at 262). "'Elements' are the 'constituent parts' of a crime's legal definition - the things the 'prosecution must prove to sustain a conviction.'" Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) (quoting Black's Law Dictionary 634 (10th ed. 2014)). "'Means', on the other hand, are 'various factual ways of committing' a single element." United States v. McCants, 920 F.3d 169, 178 (3d Cir. 2019) (quoting Mathis, 136 S.Ct. at 2249). A statute is divisible when it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis, 136 S.Ct. at 2249.

         The Fourth Circuit has not ruled squarely on the issue of whether N.J.S.A. § 2C:15-1 is a divisible statute. Petitioner and government have also not squarely addressed this issue.[4] The parties do not dispute, however, petitioner's convictions at paragraphs 17, 18, and 19 of the pre-sentence investigation report ("PSR") are for New Jersey first degree ...


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