United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
Altorre Randolph is an inmate in custody of the Federal
Bureau of Prisons who currently is housed at USP-Big Sandy in
Inez, Kentucky. This matter is before the court on
Movant's motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct sentence, which motion was filed on May
2, 2016. Movant, through counsel, filed a
supplemental § 2255 motion on May 13, 2016. Movant filed
a pro se motion to supplement his § 2255 motion on May
25, 2016, to alert the court to the decision in United
States v. Gardner, 823 F.3d 793 (4th Cir.
2016). Movant's motion to supplement (ECF No. 72) is
granted, although Gardner does not govern the
analysis because it pertains to North Carolina, rather than
South Carolina, criminal law.
before the court is motion for summary judgment filed by the
United States on June 7, 2016, to which Movant filed a
response on July 8, 2016.
was indicted on July 16, 2008, and charged with being a felon
in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e). The United
States filed an Information pursuant to 18 U.S.C. § 851
on January 6, 2009, notifying Movant that he was subject to
increased penalties based on prior convictions for (1) strong
arm robbery and assault and battery of a high and aggravated
nature in 2003; (2) trafficking in crack cocaine, 10-28
grams, first offense, in 2000; (3) strong arm robbery in
2000; (4) strong arm robbery in 1998; and (5) strong arm
robbery in 1998. Movant pleaded guilty before the Honorable
Matthew J. Perry, Jr. on March 17, 2009.
presentence investigation report (PSR) was prepared by the
United States Probation Office. The PSR recited that Movant
had been convicted of strong arm robbery and sentenced in the
Richland County, South Carolina, Court of General Sessions on
October 12, 1998, to fifteen years confinement suspended on
time served and three years probation (offense date May 10,
1996). ECF No. 41, ¶ 18. The PSR also recited that
Movant had been convicted of strong arm robbery and sentenced
in the Richland County, South Carolina, Court of General
Sessions on October 12, 1998, to fifteen years confinement
suspended on time served and three years probation (offense
date August 11, 1998). Id. ¶ 21. The PSR
further recited that Movant had been convicted of strong arm
robbery and sentenced in the Richland County, South Carolina,
Court of General Sessions on June 8, 2000, to three years
confinement (offense date February 25, 1999). Id.
¶ 22. The PSR recited that Movant had been convicted of
trafficking in crack cocaine and sentenced in the Richland
County, South Carolina, Court of General Sessions on October
26, 2000, to three years confinement (offense date March 31,
1999). Id. ¶ 23.
also noted that Defendant had been convicted of assault and
battery of a high and aggravated nature and strong arm
robbery in the Richland County, South Carolina, Court of
General Sessions and sentenced on February 13, 2003, to five
years confinement suspended on the service of three years and
two years probation, to run concurrently (offense date August
23, 2002). Id. ¶ 24. The convictions enumerated
hereinabove were identified as predicate convictions for an
armed career criminal enhancement under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (ACCA).
criminal history points totaled 24, for a criminal history
category of VI. Further, because Movant was designated as an
armed career criminal, his criminal history category was VI.
Movant's base offense level was 24. He received a
four-level increase for using or possessing a firearm or
ammunition in connection with another felony offense (armed
robbery), for an adjusted offense level of 28. Because he had
received at least three prior convictions for a violent
felony or serious drug offense or both, Movant's 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 188-235 months
imprisonment. On June 9, 2009, Judge Perry granted a variance
and sentenced Movant to 180 months incarceration. Judgment
was entered on June 11, 2009.
moves for relief pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court interpreted a portion of the ACCA that mandates
an enhanced sentence for an offender convicted of being a
felon in possession of a firearm, if the offender has three
or more convictions for a serious drug offense or violent
felony. See 18 U.S.C. § 922(g)(1). Under 18
U.S.C. § 924(e)(1), “a person who 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, . . . shall be . . . imprisoned not
less than fifteen years[.]” Under § 924(e)(2)(B),
the term “violent felony” means:
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.
Johnson, 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
argues that his convictions for strong arm robbery fall
within the residual clause and therefore his sentence is
unconstitutional under Johnson. Movant's
argument is without merit because the Fourth Circuit Court of
Appeals has determined strong arm robbery qualifies as a
crime of ...