United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
September 4, 2007, Movant Gregory Young Bowles pleaded guilty
to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). A presentence investigation
report was prepared that identified four prior predicate
offenses for purposes of the Armed Career Criminal Act, 18
U.S.C. § 924(e): (1) a conviction on October 9, 1984,
for robbery, second degree in the Queens County, New York,
Supreme Court, ¶ 28; (2) a conviction on November 8,
1984, for robbery, third degree in the Queens County, New
York, Supreme Court, ¶ 29; (3) a conviction on March 16,
1988, for criminal sale of a controlled substance, third
degree in the Queens County, New York, Supreme Court, ¶
30; and (4) a conviction on March 21, 1997, for continuing
criminal enterprise in the United States District Court for
the Northern District of New York, ¶ 31. As a result of
the predicate offenses, Movant's criminal history
category became VI. Movant's base offense level was 24.
Movant received a 4-level enhancement for possessing a
firearm in connection with a drug trafficking offense, for an
adjusted offense level of 28; however, because Movant was
categorized as an armed career criminal, his offense level
became 34. Movant received a 3-level reduction for acceptance
of responsibility, for a total offense level of 31.
Movant's guidelines range was 188 to 234 months
imprisonment. His statutory range was fifteen years to life
imprisonment. On February 26, 2009, Movant was sentenced to
incarceration for a period of 188 months. Judgment was
entered on February 27, 2009.
matter is before the court on Movant's motion to correct
sentence pursuant to 28 U.S.C. § 2255, which motion was
filed on March 15, 2016. Movant contends that, in light of
the Supreme Court's decision in Johnson (Samuel) v.
United States, 135 S.Ct. 2551 (2015), he does not have
the requisite number of qualifying predicate offenses to be
found an armed career criminal. On April 14, 2016, Respondent
United States of America filed a motion to dismiss. Movant
filed a response in opposition on April 25, 2016.
Armed Career Criminal Act of 1984 (ACCA) mandates an enhanced
sentence for an offender convicted of being a felon in
possession of a firearm if the offender has three or move
convictions for a serious drug offense or violent felony.
Under 18 U.S.C. § 924(e)(2)(B), the term “violent
felony” means any crime punishable by imprisonment for
a term exceeding one year . . . 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.
violent felony is a crime characterized by extreme physical
force, such as murder, forcible rape, and assault and battery
with a dangerous weapon. Johnson (Curtis) v. United
States, 559 U.S. 133, 140-41 (2010) (quoting 19 Oxford
English Dictionary 1188 (2d 3d. 1989)).
Johnson (Samuel), the Court determined that the
language known as the residual clause-i.e., “or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”-is
unconstitutionally vague. Thus, Johnson (Samuel)
reduced the number of violent felonies that can be considered
as predicate offenses under the ACCA. In Welch v. United
States, 136 S.Ct. 1257 (2016), the Court determined that
Johnson (Samuel) announced a new substantive rule
that applies retroactively to cases on collateral review.
contends that his prior convictions for robbery, second
degree and robbery, third degree do not qualify as violent
felonies because neither offense meets the definitional
requirements of “force” as set out in §
924(e)(2)(B)(i) or the enumerated offenses set forth in
§ 924(e)(2)(B)(ii). “Robbery” is not an
enumerated offense in § 924(e). The question becomes,
then, whether Movant's prior convictions for robbery
satisfy the force clause. To answer this question, the court
is required to use the “categorical approach, ”
which approach focuses on the elements of the statute forming
the basis of the defendant's conviction to determine
whether the minimum conduct necessary for a conviction
amounts to a violent felony. Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013).
Penal Law§ 160.00 provides:
Robbery is forcible stealing. A person forcibly steals
property and commits robbery when, in the course of
committing a larceny, he uses or threatens the immediate use
of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the
property or to the retention thereof immediately after the
2. Compelling the owner of such property or another person to
deliver up the property or to engage in other conduct which