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Armstrong v. United States

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

December 9, 2019

TELLY SAVALAS ARMSTRONG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the Petitioner's Motion to Vacate Sentence under 28 U.S.C. § 2255 [CV Doc. 1][1] and the Government's Motion to Dismiss Petitioner's Motion to Vacate [CV Doc. 7]. The Petitioner is represented by Joshua Carpenter and Caryn Devins Strickland of the Federal Defenders of Western North Carolina.

         I. BACKGROUND

         On May 10, 2002, Petitioner Telly Savalas Armstrong (“Petitioner”) was charged in a Bill of Indictment with one count of conspiracy to commit an offense against the United States, in violation of 18 U.S.C. § 371 (Count One); three counts of aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951, 2 (Counts Two, Four, and Six); and three counts of aiding and abetting the possession and brandishing of a firearm in furtherance of a crime of violence, that is, 18 U.S.C. § 1951, in violation of 18 U.S.C. §§ 924(c), 2 (Counts Three, Five, and Seven). [CR Doc. 1: Indictment].

         On August 3, 2004, Petitioner and the Government entered into a Plea Agreement, pursuant to which Petitioner agreed to plead guilty to Counts Three and Seven (possession and brandishing of a firearm in furtherance of a crime of violence, in violation of § 924(c)), and the Government agreed to dismiss Counts One, Two, Four, Five and Six. [CR Doc. 75 at 1: Plea Agreement]. On August 9, 2004, Petitioner pleaded guilty in accordance with the Plea Agreement. [CR Doc. 76: Entry and Acceptance of Guilty Plea].

         Before Petitioner's sentencing, a probation officer prepared a Presentence Investigation Report (PSR). [CR Doc. 27: Presentence Investigation Report]. The probation officer found Petitioner's criminal history category to be VII. Petitioner's statutory term of imprisonment for Count Three was a minimum of seven years to life and the statutory term for Count Seven was a minimum of 25 years to life, 18 U.S.C. 924(c). The resultant guidelines range for imprisonment was a minimum of seven years followed by a mandatory consecutive sentence of 25 years. [Id. at ¶¶ 79-80]. Petitioner's sentencing hearing was held on February 14, 2005. The Court sentenced Petitioner to 84 months on Count Three and 300 months on Count Seven, to run consecutively to the term for Count Three, for a total term of 384 months' imprisonment. [CR Doc. 84 at 2: Judgment]. Judgment on this conviction was entered on March 15, 2005. [Id.]. The Fourth Circuit Court of Appeals affirmed Petitioner's conviction. [CR Doc. 89].

         On June 17, 2016, Petitioner filed a Motion to Vacate Sentence under 28 U.S.C. § 2255, arguing that his conviction under 18 U.S.C. § 924(c) is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015).[2] [CV Doc. 1]. The Court conducted an initial screening of Petitioner's Motion and ordered the Government to respond. [CV Doc. 2]. Upon the request of the Government, this matter was stayed pending the Fourth Circuit's decision in United States v. Ali, No. 15-4433, and United States v. Simms, No. 15-4640. The Fourth Circuit then ordered that Ali would be held in abeyance pending the Supreme Court's decision in United States v. Davis, No. 18-431. On the Government's request, this matter was in turn stayed pending Davis. [CV Docs. 5, 6]. The Supreme Court decided Davis on June 24, 2019. The Government timely filed a motion to dismiss Petitioner's § 2255 motion to vacate. [CV Doc. 7]. The Petitioner responded to the Government's motion [Doc. 11] and the Government replied [Doc. 14].

         This matter is now ripe for disposition.

         II. STANDARD OF REVIEW

         Rule 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 motion to vacate 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).

         III. DISCUSSION

         Under 28 U.S.C. § 2255, a petitioner is entitled to relief when his original sentence “was imposed in violation of the Constitution or laws of the United States, or [when] the court was without jurisdiction to impose such sentence.” 28 U.S.C. § 2255(a). The Petitioner argues he is entitled to relief on these grounds because, under Johnson, his § 924(c) convictions on Counts Three and Seven were imposed in violation of the Constitution and laws of the United States. [See CV Doc. 1 at 1-2].

         In Johnson, the Supreme Court struck down the Armed Career Criminal Act's (ACCA) residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague and held that enhancing a sentence under the ACCA's residual clause violates due process. Johnson, 135 S.Ct. at 2563. The ACCA residual clause defined a “violent felony” to include any crime punishable by a term of imprisonment exceeding one year that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Accordingly, under Johnson, a defendant who was sentenced to a statutory mandatory minimum term of imprisonment based on a prior conviction that satisfies only the residual clause of the “violent felony” definition is entitled to relief from his sentence. The Supreme Court has held that Johnson applies retroactively to claims asserted on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Petitioner argues his § 924(c) convictions are invalid under Johnson. [Doc. 1 at 1]. Section 924(c) criminalizes the use of a firearm in furtherance of a “crime of violence.” Under § 924(c), a crime is one of violence if it either “has an element the use, attempted use, or threatened use of physical force against the person or property of another, ” (the “force clause”) or “by its nature involves a substantial risk that physical force against the person or property ...


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