United States District Court, D. South Carolina
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge
Michael Morton is an inmate in custody of the Federal Bureau
of Prisons. He currently is housed at FCI-Edgefield in
Edgefield, South Carolina. This matter is before the court on
Movant's motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, as amended.
AND PROCEDURAL HISTORY
January 29, 2009, Movant pleaded guilty to conspiracy to
possess with intent to distribute and to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C. §
846. A presentence investigation report (PSR) was prepared by
the United States Probation Office. The PSR noted that Movant
has a conviction for strong arm robbery in 1998 in Edgefield
County General Sessions Court, Edgefield, South Carolina. ECF
No. 679, ¶ 34.; as well as a conviction in 2005 for
strong arm robbery in Aiken County General Sessions Court,
Aiken, South Carolina. Id., ¶ 40. Movant's
criminal history score was 10. Two points were added pursuant
to U.S.S.G. § 4A1.1(d) because Movant was on probation
for the offenses of strong arm robbery and theft by receiving
stolen property. One additional point was added pursuant to
U.S.S.G. § 4A1.1(e) because Movant committed the offense
less than two years after his release from custody for the
sentence received for strong arm robbery in Edgefield County,
South Carolina. Movant's criminal history category was
IV. However, Movant was designated as a career offender based
on his convictions for breaking and entering and bank
robbery. Movant's criminal history category became VI.
provided for a base offense level of 36. Because Movant was
designated as a career offender, his offense level under
U.S.S.G. § 4B1.1 became 37. Movant received a
three-level reduction for acceptance of responsibility, for a
total offense level of 34. On February 26, 2010, Movant was
sentenced under the U.S. Sentencing Guidelines to 262 months
imprisonment. Judgment was entered March 1, 2010. The Court
of Appeals for the Fourth Circuit affirmed the sentence.
See United States v. Morton, 422 F. App'x 248
(4th Cir. 2011).
proceeding pro se, filed a § 2255 motion on March 9,
2012. The court appointed counsel, who filed a supplemental
memorandum to Movant's § 2255 motion on June 28,
2016. Movant seeks the benefit of Johnson v. United
States, 133 S.Ct. 2551 (2015), in which the Supreme
Court held that the “residual clause” of the
Armed Career Criminal Act (ACCA) is unconstitutionally vague.
Counsel argued that Johnson applies with equal force
to the United States Sentencing Guidelines under which Movant
was sentenced. Counsel further argued that Movant's
convictions for strong arm robbery do not qualify as
“crimes of violence” under the “residual
clause” of U.S.S.G. § 4B1.2(a)(2).
August 4, 2016, upon motion of Respondent, the court stayed
the matter pending disposition of United States v.
Doctor, 842 F.3d 306 (2017), a case wherein a defendant
challenged a district court's determination that strong
arm robbery qualifies as a violent felony under the ACCA. The
Court of Appeals for the Fourth Circuit decided
Doctor on November 21, 2016. The Fourth Circuit
observed that strong arm robbery and common law robbery are
synonymous terms. Id. at 308, n.1. The Fourth
Circuit then applied the categorical approach and concluded
South Carolina has defined its common law robbery offense,
whether committed by means of violence or intimidation, to
necessarily include as an element the ‘use, attempted
use, or threatened use of physical force against the person
of another.' Accordingly, we conclude that Doctor's
prior conviction for South Carolina robbery qualifies as a
predicate violent felony within the meaning of the ACCA.
Id. at 312.
filed a motion for summary judgment on June 28, 2017. Movant
filed a response on July 12, 2017. The matter now is ripe for
Johnson the Supreme Court addressed the ACCA, which
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. 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 ...