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United States v. Partman

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

August 2, 2018

United States of America
v.
Mark Devin Partman, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Defendant 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), Defendant is no longer an armed career criminal and should be resentenced. ECF No. 58. The Government filed a response in opposition and a motion for summary judgment. ECF Nos. 61, 62. Defendant filed a response in opposition to summary judgment. ECF No. 66. This matter is ripe for resolution.

         I. Background

         On April 3, 2007, Defendant was indicted on three 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 4, 2008, Defendant entered into a plea agreement to plead guilty to one count. ECF No. 24. Defendant entered a guilty plea pursuant to the plea agreement the same day. ECF No. 26.

         A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the Armed Career Criminal Act (“ACCA”), facing a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. ECF No. 34. The PSR concluded Defendant's prior South Carolina convictions for failure to stop for a blue light and two counts of burglary were violent felonies, all of which qualified as predicate convictions for ACCA purposes. Id. at ¶¶ 27, 28. The PSR also listed prior convictions for pointing and presenting firearms at a person (¶ 31) and multiple counts of armed robbery occurring on different days (¶ 32). With the ACCA enhancement and three point decrease for acceptance of responsibility, Defendant's total offense level was 30, criminal history category VI, resulting in a guideline range of 180-210 months. Id. at ¶ 72.

         On June 20, 2008, Defendant appeared for sentencing. The court overruled oral objections to the PSR and sentenced Defendant to 180 months' imprisonment and a five-year term of supervised release. ECF No. 31. Defendant did not appeal his conviction or sentence.

         Defendant filed an initial § 2255 motion on August 11, 2014. ECF No. 39. After full briefing, this court granted the Government's motion to dismiss. ECF No. 54. Defendant received permission from the Fourth Circuit to file a second or successive § 2255 motion, and filed the instant motion on May 25, 2016. ECF Nos. 57, 58.

         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.”

         a. ...


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