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Powell v. United States

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

September 18, 2019

David Dewayne Powell, Movant,
v.
United States of America, Respondent.

          OPINION AND ORDER

          Margaret B. Seymour, Senior United States District Judge.

         David Dewayne Powell (“Movant”) is a federal inmate currently housed at FCI Petersburg Low in Hopewell, Virginia. On May 3, 2016, Movant, proceeding with counsel, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence. ECF No. 172. This matter is before the court on a motion to dismiss filed by Respondent United States of America (the “government”) on June 2, 2016. ECF No. 178. Movant filed a response to the government’s motion on June 8, 2016. ECF No. 180.

         I. FACTUAL AND PROCEDURAL HISTORY

         On August 6, 1997, a federal grand jury returned an Indictment charging Movant with conspiracy to possess stolen firearms in violation of 18 U.S.C. § 922(j) (Count1); felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 2 (Count 2); possession of stolen firearms in violation of 18 U.S.C. §§ 922(j) and 2 (Count 3); possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count 4); felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 2 (Count 5); possession of stolen firearms in violation of 18 U.S.C. §§ 922(j) and 2 (Count 6); and possession of a stolen firearm in violation of 18 U.S.C. §§ 922(i) and 2 (Count 7). Movant pleaded guilty pursuant to a plea agreement to Count 5 on December 2, 1997, ECF No. 76. Movant’s Presentence Investigation Report indicated that, among other items, Movant's criminal history included: a 1990 conviction for 9 counts of residential burglary in Columbia County, Georgia; a 1991 conviction for residential burglary in Richmond County, Georgia; and a 1991 conviction for burglary third in Edgefield County, South Carolina, which convictions made Movant an armed career criminal under the Armed Career Criminal Act of 1984 (ACCA). Movant’s total offense level became 35 and his criminal history category was VI, which yielded a sentencing range of 292-365 months. ECF No. 86 at 12-15. On June 4, 1998, the Honorable Dennis W. Shedd sentenced Movant to a total of 365 months imprisonment, with 5 years of supervised release to follow. ECF No. 87. Movant filed a Notice of Appeal on June 9, 1998. ECF No.88. The Court of Appeals for the Fourth Circuit issued an opinion affirming the court’s sentencing decision on January 19, 1999. ECF No. 142.

         II. DISCUSSION

         Movant contends that his prior convictions for Georgia[1] burglary are no longer predicate offenses under the ACCA based on the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 172 at 2. Under the ACCA, as codified at 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 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.

         In Johnson, the Supreme Court determined that the language “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” known as the residual clause, is unconstitutionally vague.[2] Therefore, the court must determine whether Movant’s Georgia burglary convictions fall within one of the ACCA’s enumerated predicate offenses – the enumerated predicate offense in this case being burglary. In order to determine whether the Georgia burglary statute qualifies as a predicate offense under the ACCA, the court must select from two distinct analytical approaches, the modified categorical approach and the categorical approach. To make this selection, the court must determine whether the Georgia burglary statute in effect at the time of Movant’s conviction contains “‘multiple alternative elements (thus creating multiple versions of a crime)’ such that it is divisible or ‘multiple alternative means (of committing the same crime)’ such that it is indivisible.” United States v. Cornette, No. 18-6041, 2019 WL 3417272, at *5 (4th Cir. July 30, 2019)(quoting Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014)). If the statute is divisible, the court will use the modified categorical approach “only to determine which alternative element in a divisible statute formed the basis of the defendant's conviction.” Descamps v. United States, 570 U.S. 254, 278 (2013). If the statute is not divisible, the court will instead employ the categorical approach, which restricts the court’s “analysis to the facts of the conviction itself, taking no account of the actual conduct on which the conviction is based.” United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013). In other words, if the statute in question is not divisible, the court’s analysis will focus on the statute as a whole.

         The statute under which Movant was convicted[3] provided:

[a]person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another.

O.C.G.A. § 16-7-1.

         In Cornette, the Court of Appeals for the Fourth Circuit held that the elements of the Georgia burglary statute are not divisible.[4] The Fourth Circuit distinguished ...


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