United States District Court, D. South Carolina
MARGARET B. SEYMOUR, Senior District Judge.
Movant Joseph Cecil Gainey was indicted on September 6, 2005, and charged with being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Counts 1, 4); possession of a firearm that had the importer's and manufacturer's serial number altered, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1) (Count 2); and possession and sale of stolen firearms, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (Counts 3, 5). On October 4, 2005, the government filed an Information notifying Movant that he was subject to increased penalties under 18 U.S.C. § 924(e), based on prior convictions in South Carolina state court, specifically: burglary 2nd degree and grand larceny in Chesterfield County General Sessions Court in 1988; burglary 3rd degree and petit larceny in Chesterfield County General Sessions Court in 1988; willfully burning lands of another and escape in Richland County General Sessions court in 1985; and burglary 2nd degree in Richland County General Sessions Court in 1997.
Movant pleaded guilty to Counts 4 and 5 of the indictment before the Honorable Matthew J. Perry, Jr. on March 16, 2006. A presentence report (PSR) was prepared that categorized the two burglary 2nd degree convictions and burglary 3rd degree conviction as predicate offenses for armed career criminal under U.S.S.G. § 4B1.4(b)(B). Movant's criminal history category was found to be V. His base offense level was 24 pursuant to § 2K2.1(a)(2). He received a two-level increase pursuant to § 2K2.1(b)(1) because the offense involved three to seven firearms. Movant received another two-level increase pursuant to 2K2.1(b)(4) because the firearms were stolen. Movant also received a four-level increase pursuant to 2K2.1(b)(5) because he used or possessed the firearms and ammunition in connection with another felony offense. Movant's adjusted offense level was 32. Because he was considered to be an armed career offender, his offense level under § 4B1.4(b)(B) became 33. Movant received a three-level reduction for acceptance of responsibility, for a total offense level of 30. Because Count 4 provided for a statutory minimum sentence of 15 years, Movant's guideline range became 180 to 188 months imprisonment.
Movant was sentenced on June 16, 2006 to 180 months incarceration as to Count 4 and 120 months incarceration as to Count 5 to run concurrently. Judgment was entered on June 20, 2006. On July 2, 2007, Movant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence in which he raised the following issue:
Sentence under the ACC Act could not be employed because two of the priors used by the government could not be counted. The predicate conviction[s] under USSG 4B1.2 involved commercial structures.... Only burglary of a dwelling constitutes a crime of violence.
ECF No. 48, 4.
Movant's § 2255 motion was found to be without merit. First, Judge Perry noted that Movant referred to the "career offender" section of § 4B1.1 and the definitions utilized in § 4B1.2, both of which were inapplicable to Movant's case because he was sentenced as an "armed career criminal" under § 4B1.4 and 18 U.S.C. § 924(e). Judge Perry observed that a "burglary" for purposes of § 924(e) includes "generic" burglary, defined as "unlawful or unprivileged entry into, or remaining in, a building or structure with the intent to commit a crime.'" ECF No. 60, 5 (quoting Taylor v. United States , 495 U.S. 575, 598-99 (1990)). Judge Perry also noted that, although two of Movant's convictions for burglary are based on incidents that occurred on the same day, they still qualified as separate convictions because they arose out of separate and distinct criminal episodes. Id . (citing United States v. James , 337 F.3d 387, 391 (4th Cir. 2003, rev'd on other grounds by United States v. Roseboro , 551 F.3d 226 (4th Cir. 2009)). Finally, Judge Perry found that Movant's claim was procedurally defaulted because it had not been raised on direct review. Id. at 6 (citing United States v. Sanders , 247 F.3d 144 (4th Cir. 2001)). Accordingly, Movant's § 2255 motion was dismissed.
This matter now is before the court on Movant's motion for review of sentence, which motion was filed on February 27, 2014. Movant argues that the burglary 2nd degree and burglary 3d degree offenses in 1988 occurred on the same day and were consolidated for sentencing, and thus should have been counted as a single predicate offense. Movant cites to U.S.S.G. § 4A1.2(a)(2) and § 4A1.2(c)(2) as supporting his contention.
As an initial matter, Movant contends that the court has jurisdiction pursuant to 18 U.S.C. § 3742(a), which provides:
A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under ...