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States v. Carey

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

February 23, 2017

United States of America
v.
Donel Andrea Carey, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge.

         Defendant, through his attorney, seeks relief pursuant to 28 U.S.C. § 2255, arguing that in light of the Supreme Court's holding in Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015) and Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257 (2016), he is no longer an armed career criminal and should be resentenced. ECF No. 39. Defendant filed a motion to hold this matter in abeyance pending United States v. Doctor, No. 15-4767, a Fourth Circuit appeal dealing with the same issue. ECF No. 40. The Government consented and this court granted the motion (ECF No. 41). After Doctor was decided, the court entered an order directing the Government to respond on the merits. ECF No. 44. The Government filed a response in opposition to Defendant's § 2255 motion and a motion for summary judgment. ECF Nos. 45, 46.

         I. Background

         On January 4, 2006, Defendant was indicted for two counts of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). ECF No. 1. On February 8, 2006, a superseding indictment charged three felon in possession counts. ECF No. 7. Defendant entered into a written plea agreement on July 6, 2006, agreeing to plead guilty to count three of the superseding indictment. ECF No. 27. Defendant entered the guilty plea the same day. ECF No. 29.

         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 of Cocaine with Intent to Distribute (1991), Strong Arm Robbery (1993), and Possession of Cocaine with Intent to Distribute (2000) were predicate convictions for ACCA purposes. See PSR ¶¶ 25, 27, 29. Defendant's guideline range was calculated to be 168-210 months, but became 180-210 months based on the statutory minimum sentence. There were no objections to the PSR.

         On October 30, 2006, Defendant appeared for sentencing. The court sentenced Defendant to 180 months' imprisonment and a five-year term of supervised release. Defendant did not appeal his conviction or sentence. Defendant filed the instant § 2255 motion on March 11, 2016.

         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, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is typically referred to as the “use of force” clause (“has as an element the use, attempted use, or threatened use of physical force against the person of another.”). The first part of the second clause, § 924(e)(2)(B)(ii), lists specific offenses - burglary, arson, extortion, offenses involving use of explosives - and is commonly denoted as the “enumerated offense” clause. Finally, the portion of § 924(e)(2)(B)(ii) covering a conviction that “otherwise involves conduct that presents a serious potential risk of physical injury to another” is generally referred to as the “residual clause.”

         III. Johnson and Welch

         On June 26, 2015, the Supreme Court held that the residual clause of the ACCA violates due process as it “denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 576 U.S. at ___, 135 S.Ct. at 2557. By holding the residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those that qualify under the enumerated or ...


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