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Dinkins v. United States

United States District Court, D. South Carolina, Columbia Division

October 3, 2016

Deon Dinkins, Defendant-Petitioner
v.
United States of America, Plaintiff-Respondent.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE JUDGE

         Defendant, through his attorney, seeks relief pursuant to 28 U.S.C. § 2255. ECF No. 116. The Government filed a response in opposition on June 26, 2016. ECF No. 120. On July 5, 2016, Defendant filed a response in support. ECF No. 121.

         I. Background

         On August 17, 2011, Defendant was indicted for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). ECF No. 2. On February 17, 2012, Defendant entered into a written conditional plea agreement to plead guilty to the charge. ECF No. 50. The same day, Defendant appeared before the court and after a thorough Rule 11 hearing, entered a guilty plea to felon in possession.

         A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the Armed Career Criminal Act (“ACCA”) and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's prior convictions for Possession with Intent to Distribute Cocaine (1992), distribution of crack cocaine/distribution of crack cocaine near a school (1994), and assault and battery with intent to kill (“ABWIK”), qualified as predicate convictions for ACCA purposes. See ECF No. 60, PSR ¶¶ 24, 26, 27. No objections were made to the PSR regarding Defendant's ACCA predicate convictions.

         On April 25, 2012, Defendant appeared for sentencing. The court varied from the guideline range of 188-235 months based on Defendant's “history of mental illness and treatment and his strong family support.” ECF No. 64. Defendant was sentenced to 180 months' imprisonment and five years' supervised release. Defendant appealed the denial of a motion to suppress and the Fourth Circuit affirmed the judgment on October 22, 2012. ECF No. 78.

         Defendant filed a §2255 motion on January 10, 2013, arguing that his counsel was ineffective for several reasons, including because he failed to “thoroughly investigate and challenge” Defendant's prior convictions that were used as predicate offenses, and asserting that he was not an armed career criminal. ECF No. 80. Specifically, Defendant argued that his conviction for possession of “a small amount of drugs” was not sufficient to qualify as an ACCA predicate. ECF No. 80-1, at 39. The Government agreed that Defendant's conviction in Paragraph 25 of the PSR, possession of cocaine (1993), did not count as a predicate drug offense for the ACCA. However, the Government asserted, and the court adopted as its finding, that Defendant had other offenses that qualified him as an armed career criminal. ECF No. 93 (Government's Response in Opposition); ECF No. 99 (Order granting Government's Motion for Summary Judgment) (“[F]or the reasons argued by the Government in its response in opposition, which the court adopts as its findings, Defendant is not entitled to relief.”). Therefore, the court dismissed Defendant's § 2255 motion with prejudice. ECF No. 99.

         Defendant filed a second pro se motion under § 2255 on May 16, 2014, arguing again that he was improperly enhanced under the ACCA because his conviction for possession of cocaine in 1993 was not for a serious drug offense. ECF No. 102. The court dismissed this motion as successive on May 19, 2014. ECF No. 212.

         Prior to filing the instant motion, Defendant filed a § 2244 motion with the Fourth Circuit. No. 16-853. On June 2, 2016, he received permission to file a second or successive motion under § 2255. ECF No. 115. The instant motion under § 2255 was filed the same day. ECF No. 116.

         II. The ACCA

         A conviction for felon in possession 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 be fined under this title and imprisoned not less than fifteen years . . . .

         As is relevant to this case, the statute defines “violent felony” as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, ...

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