United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE.
Richard Armbre Williams (“Movant”) is an inmate
in custody of the Bureau of Prisons. He is currently housed
at the Federal Correctional Institution-Bennettsville, in
Bennettsville, South Carolina. On May 3, 2016, Movant,
appearing through counsel, filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
ECF No. 51. Respondent United States of America filed a
motion to dismiss, or, alternatively, a motion for summary
judgment on June 29, 2016. ECF No. 59. Movant filed a
response in opposition to Respondent's motion on July 13,
2016. ECF No. 61. On June 20, 2017, Movant, proceeding
pro se, filed a motion to amend/supplement his
§ 2255 motion. ECF No. 62. The court
grants Movant's motion to amend or
supplement and has considered all filings submitted by Movant
with respect to his § 2255 motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
December 3, 2013, Movant was indicted for felon in possession
of a firearm, a violation of 18 U.S.C. §§
922(g)(1), 924(a)(2) and 924(e) (Count One). ECF No. 3.
Movant entered a plea of not guilty on January 17, 2014. ECF
No. 16. However, on May 28, 2014, Movant withdrew his plea of
not guilty and pleaded guilty to Count One of the indictment,
ECF No. 41, pursuant to a written plea agreement. ECF No. 38.
Prior to sentencing, the United State Probation Office
(“USPO”) prepared a Presentence Investigation
Report (“PSR”). The USPO determined Movant's
Base Offense Level to be 24, adding a two level adjustment
for obstruction. The Probation Officer designated Movant as
an Armed Career Criminal under the Armed Career Criminal Act
(“ACCA”) 18 U.S.C. § 924(e), which increased
Movant's offense level to 33. Movant's career
criminal designation was based on three convictions which
qualified as either a “violent felony” or
“serious drug offense” under § 924(e),
including: (1) Voluntary Manslaughter, (2) Assault and
Battery with Intent to Kill, and (3) Possession with Intent
to Distribute Cocaine. Movant received a two level and one
level decrease for acceptance of responsibility pursuant to
United States Sentencing Guidelines (“U.S.S.G.”)
§§ 3E1.1(a) and 3E1.1(b), respectively, bringing
Movant's Total Offense Level to 30 with a Criminal
History Category of IV. Movant's guideline range was
calculated at 135-168 months incarceration. Due to the
mandatory minimum sentence required by statute, Movant was
sentenced to 180 months imprisonment. Judgment was entered on
August 5, 2014. ECF No. 47.
first appearing through counsel, asserts that, in light of
the Supreme Court's decision in Johnson v. United
States, -U.S.-, 135 S.Ct. 2551, 2557 (2015), and
Welch v. United States, ___ U.S. ___, 136
S.Ct. 1257, 1265 (2016), Movant does not have the requisite
number of qualifying predicate offenses to be found an armed
career criminal. Movant first contends that based on
Johnson, his voluntary manslaughter conviction is no
longer a predicate offense under the ACCA because it is not a
violent felony. ECF No. 51 at 2. Under the ACCA:
[A] person who violates section 922(g) . . . and has three
previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from
one another, such person shall be . . . imprisoned not less
than fifteen years, and, notwithstanding any other provision
of law, the court shall not suspend the sentence of, or grant
a probationary sentence to, such person with respect to the
conviction under section 922(g).
18 U.S.C.A. § 924(e)(1). The term “violent
felony” is defined in part as, “[A]ny 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. 18 U.S.C. 924(e)(2)(B). Subsection (i) is commonly
referred to as the “force clause.” See, e.g.
United States v. McNeal, 818 F.3d 141, 152 (4th Cir.
2016); United States v. Gardner, 823 F.3d 793, 802
(4th Cir. 2016); United States v. Hemingway, 734
F.3d 323, 327 (4th Cir. 2013).
determine whether a state crime qualifies as a violent felony
under the ACCA's force clause, the court applies the
categorical approach described by the Supreme Court in
Descamps v. United States, ___ U.S. ___, 133 S.Ct.
2276, (2013); United States v. Burns-Johnson, 864
F.3d 313, 318 (4th Cir.), cert. denied, 138 S.Ct.
461 (2017). Under the categorical approach, the court
examines whether a state crime has as an element the
“use, attempted use, or threatened use of physical
force against the person of another, ” and does not
consider the particular facts underlying the defendant's
conviction. Descamps, 133 S.Ct. at 2283. The Supreme
Court has defined the term “physical force” under
the ACCA as “violent force-that is, force
capable of causing physical pain or injury to another
person.” Burns-Johnson, 864 F.3d at 316
(quoting Johnson v. United States, 559 U.S. 133, 140
(2010) (Johnson I)).
on dicta from the Fourth Circuit's decision in United
States v. Torres-Miguel, Movant argues that voluntary
manslaughter is not a violent felony under the force clause
because voluntary manslaughter does not have as an element
the use of force or threatened use of force. ECF No. 51 at 2;
United States v. Torres-Miguel, 701 F.3d 165, 169
(4th Cir. 2012) (“[T]o constitute a predicate crime of
violence justifying a sentencing enhancement under the
Guidelines, a state offense must constitute a use or
threatened use of violent force, not simply
result in physical injury or death.”).
According to Movant, “[t]he offense [of voluntary
manslaughter] may be committed by poisoning, locking someone
in a hot car or shed, pushing a victim into deep water when
he can't swim, tricking someone into walking off a cliff
or into an oncoming train, leaving someone in extreme cold,
or locking the person up in a place which exposes the person
to carbon monoxide.” ECF No. 51 at 2. Because these
methods of committing the offense of voluntary manslaughter
do not involve violent physical force, Movant argues that
voluntary manslaughter does not meet the requirements of a
predicate offense under the ACCA. Id. Respondent
asserts, however, that Movant's prior conviction for
voluntary manslaughter, by its elements, involves the use of
physical force against another person, and therefore the
conviction qualifies as a predicate offense. ECF No. 59-1 at
the United State Supreme Court issued its opinion in
United States v. Castleman, ___ U.S.___, 134 S.Ct.
1405, (2014), the Court abrogated the Fourth Circuit's
statement in Torres-Miguel opining that the use of
poison would not constitute the use of force under
Johnson I. See Burns-Johnson, 864 F.3d at
318; In re Irby, 858 F.3d 231, 238 (4th Cir. 2017)
(“[T]he distinction we drew in Torres-Miguel
between indirect and direct applications of force and our
conclusion that poison ‘involves no use or threatened
use of force, ' no longer remains valid in light of
Castleman's explicit rejection of such a
distinction.”). In Castleman, the Supreme
Court explained that when a defendant uses poison against
another person, the relevant “‘use of
force'” . . . is not the act of
‘sprinkl[ing]' the poison; it is the act of
employing poison knowingly as a device to cause physical
harm. That the harm occurs indirectly, rather than directly
(as with a kick or punch), does not matter.”
Castleman, 134 S.Ct. at 1415 (explaining further
that under the defendant's faulty logic, one could say
that pulling the trigger on a gun is not a “use of
force” because it is the bullet, not the trigger, that
actually strikes the victim).
manslaughter is defined in South Carolina as the unlawful
killing of a human being in the sudden heat of passion upon
sufficient legal provocation. State v. Cole, 525
S.E.2d 511, 513 (S.C. 2000). The offense of voluntary
manslaughter involves intent on the part of the perpetrator.
State v. Blassingame, 244 S.E.2d 528, 529 (S.C.
1978). The Fourth Circuit noted that “one cannot
unlawfully kill another human being without a use of physical
force capable of causing physical pain or injury to
another.” In re Irby, 858 F.3d at 238.
Therefore, voluntary manslaughter has, as an element, the
intentional use of physical force against another. See
White v. United States, No. 4:11-CR-02164-RBH-1, 2017 WL
4410253, at *4 (D.S.C. Oct. 4, 2017). As such, voluntary
manslaughter qualifies as a predict offense under the ACCA.
Movant's argument is without merit.
further contends that his South Carolina conviction for
assault and battery with intent to kill (“ABIK”)
no longer qualifies as a “violent felony” under
the force clause of the ACCA. ECF No. 51 at 3. South Carolina
courts have defined ABIK as “an unlawful act of violent
nature to the person of another with malice aforethought,
either express or implied.” Suber v. State,
640 S.E.2d 884, 886 (S.C. 2007). Movant argues that because
the only difference between ABIK and assault and battery of a
high and aggravated nature (“ABHAN”) is the
additional element of malice aforethought-which Movant
contends does not require the use of violent force-the same
ACCA “violent felony” analysis for ABHAN can be
equally applied to “violent felony” analysis for
ABIK. ECF No. 51 at 3. Movant relied on the Fourth
Circuit's decision in Hemingway-where the court
held that the South Carolina offense of ABHAN was not deemed
a violent felony under the ACCA-to conclude that, like ABHAN,
ABIK is not an ACCA violent felony. Id.
like murder, requires at least a general intent to kill.
United States v. Dinkins, No. 16-4795, 2017 WL
6371255, at *2 (4th Cir. Dec. 12, 2017); State v.
Dennis, 742 S.E.2d 21, 27 (Ct. App. 2013). Therefore,
South Carolina courts have recognized that what distinguishes
ABIK from ABHAN is not malice, but an intent to kill.
Dennis, 742 S.E.2d at 27. The Fourth Circuit
explained in Dinkins, that a conviction of ABIK
requires the “State prosecutor to prove that the
defendant possessed the general intent to kill the victim,
meaning that he intentionally performed an act capable of
causing death . . . .” Dinkins, No. 16-4795,
2017 WL at *3. Looking to Johnson I and the language
of the force clause, the court reasoned that a person who
satisfies the elements of ABIK has surely attempted or
threatened to use ...