United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE JUDGE
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.
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.
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.
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.
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.
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.
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.
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 . . . .
relevant to this case, the statute defines “violent
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, ...