United States District Court, D. South Carolina, Florence Division
L. Wooten Senior United States District Judge
matter comes before the Court for consideration of the
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner John Sherman
Lee. For the reasons stated below, the petition is granted in
part and denied in part.
Factual and Procedural History
was charged in a two-defendant, five-count superseding
indictment with Hobbs Act robbery (Count 1), being a felon in
possession of a firearm (Count 2), and using and carrying a
firearm during a crime of violence (Count 4). ECF No. 32. In
the middle of trial, he elected to plead guilty to all three
counts, and on June 27, 2006, the Court sentenced him to a
total of 312 months incarceration, consisting of 240 months
on Count 1 and 312 months on Counts 2 and 4. ECF No. 100.
was classified as an armed career criminal under the Armed
Career Criminal Act (ACCA), which imposes a mandatory minimum
sentence of fifteen years imprisonment followed by five years
of supervised release on a felon who possesses a firearm and
who has three or more prior convictions for committing
certain drug crimes or “violent felon[ies].” 18
U.S.C. § 924(e)(1). The Presentence Investigation Report
(PSR) classified the following offenses as ACCA predicates:
(1) Armed Robbery (North Carolina) (PSR ¶ 39 –
Docket No. 77CRS28150);
(2) Armed Robbery (North Carolina) (PSR ¶ 39 –
Docket No. 77CRS28416);
(3) Escape (South Carolina) (PSR ¶ 42);
(4) Assault and Battery of a High and Aggravated Nature
(ABHAN) (South Carolina) (PSR ¶ 45);
(5) Larceny From a Person (North Carolina) (PSR ¶ 46).
also was classified as a career offender under § 4B1.1
of the Sentencing Guidelines based on the ABHAN and larceny
convictions. PSR ¶ 83.
judgment was entered, he filed a direct appeal, but the
Fourth Circuit affirmed. United States v. Lee, 230
Fed.App’x 245 (4th Cir. 2007).
January 2007, Petitioner timely filed a pro se petition under
28 U.S.C. § 2255, which the Court dismissed on the
merits after briefing. ECF Nos. 123, 137. He did not file a
2016, as required by 28 U.S.C. § 2244, Petitioner filed
a motion in the Fourth Circuit requesting authorization to
file a successive § 2255 petition to seek resentencing
in light of Johnson v. United States, 135 S.Ct. 2551
(2015). In re Lee, No. 16-9271 (4th Cir.), ECF No.
2. On June 24, 2016, the Fourth Circuit granted his motion.
Id., ECF No. 8-2. His § 2255 petition was
docketed in this Court that day. ECF No. 151.
§ 2255 petition, Petitioner seeks a full resentencing,
arguing that his ACCA and career offender designations are
invalid in light of Johnson and that his §
924(c) conviction should be vacated because Hobbs Act robbery
is no longer ...