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United States v. Davis

United States District Court, D. South Carolina, Rock Hill Division

July 8, 2015

United States of America,
v.
Gary Davis, Jr., Defendant.

OPINION and ORDER

CAMERON McGOWAN CURRIE, Senior District Judge.

This matter is before the court on Defendant's pro se motion for relief under 28 U.S.C. § 2255. Defendant challenges his classification as an armed career criminal based upon his prior conviction for South Carolina second degree burglary. For the reasons outlined below, the court finds that binding Fourth Circuit precedent requires it to find that Defendant's prior conviction for South Carolina second degree burglary renders Defendant an armed career criminal. Accordingly, the Government is entitled to summary judgment and Defendant's motion is dismissed with prejudice.

I. BACKGROUND

In early 2012, Defendant was indicted in this District for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e).[1] On October 18, 2012, Defendant entered into a written plea agreement to plead guilty to the felon in possession charge. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. On that same day, Defendant appeared with counsel and after a thorough Rule 11 hearing (which Defendant does not challenge), the court found that Defendant was competent and capable of entering an informed plea of guilty, that Defendant was aware of the nature of the charge and the consequences of pleading guilty, and that his plea was knowing and voluntary and supported by an independent basis in fact that contained each of the essential elements of Count One. The court thereafter adjudged Defendant guilty of felon in possession of a firearm.

A Pre-Sentence Report (PSR) was prepared in anticipation of sentencing. Defendant had several prior state convictions which were deemed qualifying "violent felonies" pursuant to 18 U.S.C. § 924(e). Based upon the number and type of Defendant's prior state court convictions, Defendant was found to be an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Defendant therefore faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. Pursuant to U.S.S.G. § 4B1.4(c)(3), having been found an armed career criminal, Defendant's criminal history category was IV. Defendant's offense level was 33, and after a 3-level reduction for acceptance of responsibility, Defendant's total offense level of 30 and criminal history category IV produced a guideline range of 180 months' imprisonment pursuant to U.S.S.G. § 5G1.1(b). Absent Defendant's designation as an armed career criminal, Defendant's offense level would have been 22, and after a 3-level reduction for acceptance of responsibility, a total offense level of 19 and criminal history category IV would have produced a guideline range of 46 to 57 months' imprisonment.[2]

On January 18, 2013, Defendant appeared for sentencing. Defendant raised an oral objection to the finding that he was an armed career criminal, contending that two of his predicate drug offenses were not "committed on occasions different from one another...." 18 U.S.C. § 924(e). After hearing from both parties and overruling this oral objection, the court also denied Defendant's motion for downward variance, and sentenced Defendant to 180 months' imprisonment.

Defendant appealed his conviction and sentence and his counsel subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which raised issues of validity of Defendant's guilty plea and the court's denial of Defendant's objection relating to the ACCA. The Government did not seek to enforce the waiver contained in Defendant's plea agreement.

On June 17, 2013, the Supreme Court decided Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151 (2013). Three days later, on June 20, 2013, the Supreme Court decided Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (2013). Thereafter, on July 11, 2013, the Fourth Circuit affirmed Defendant's conviction and sentence in an unpublished per curiam opinion. See United States v. Davis, 532 F.Appx. 406 (4th Cir. 2013).

On August 25, 2014, the Clerk of Court received Defendant's timely motion for relief under 28 U.S.C. § 2255. Due to complexities of the ACCA issue and in the interest of justice, the court appointed counsel for Defendant, and ordered briefing on use of Defendant's conviction for South Carolina burglary second degree as a predicate ACCA offense. After briefing was concluded, the court determined the Supreme Court's decision to direct rebriefing and reargument in Johnson v. United States, 576 U.S. ___, ___ S.Ct. ___, 2015 WL 2473450 (U.S., June 26, 2015), warranted delaying decision in this matter until that case was decided. As Johnson has now been decided, this matter is now ripe for consideration.

II. 28 U.S.C. § 2255

Defendant argues in his § 2255 motion that "his sentence was based on the erroneous application of the Armed Career Criminal Act..., " Mot. to Vacate at 1, ECF No. 53-1, because his prior conviction for South Carolina burglary second degree is not a violent felony under 18 U.S.C. § 924(e). Defendant maintains that the alleged error "renders his sentence in violation of the Constitution and laws of the United States that resulted in a sentence in excess of the maximum authorized by the law." Id. The Government argues in opposition that a South Carolina conviction for second degree burglary still qualifies as "generic burglary" after Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (2013), and, in addition, that the "residual clause" of § 924(e) applies.[3]

On June 30, 2015, the Fourth Circuit decided United States v. Newbold, ___ F.3d ___, 2015 WL 3960906 (4th Cir. June 30, 2015). In Newbold, the Fourth Circuit determined that because Newbold was wrongly found to be an armed career criminal, the ACCA sentence he received was "an illegal one, " ___ F.3d at ___, 2015 WL 3960906 at *4, and that because Newbold had "received a punishment that the law cannot impose upon him, " id. (quoting Shipp, 589 F.3d at 1091, his claim was cognizable under § 2255.[4] For purposes of this motion, therefore, the court finds that Defendant has adequately stated a cognizable claim under § 2255. The availability of § 2255 relief to Defendant in this matter thus hinges on whether Defendant's South Carolina conviction for second degree burglary qualifies as a violent felony under the enumerated offenses clause of the ACCA.

III. 18 U.S.C. § 924(E)

A federal felon in possession conviction typically carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). However, if the accused has three or more previous convictions for certain types of felonies, he is subject to an enhanced minimum sentence of fifteen years' imprisonment with a maximum term of life imprisonment. Title 18 U.S.C. § 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall ...

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