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United States v. Benton

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

October 7, 2019

United States of America,
v.
Robert Benton, Jr., Defendant.

          OPINION AND ORDER

          CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         Defendant seeks relief in this court pursuant to 28 U.S.C. § 2255 and Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2015).[1] ECF Nos. 259, 264, 269. Defendant's original pro se motion argues he is no longer an Armed Career Criminal or a Career Offender, and that his 18 U.S.C. § 924(c) conviction should be vacated because his underlying offense fails to qualify as a “crime of violence.” ECF No. 259. Defendant filed a pro se supplement, arguing his convictions for aggravated assault and battery, assault and battery with intent to kill, and involuntary manslaughter no longer qualify as predicate convictions under the Armed Career Criminal Act. ECF No. 264.[2] The Federal Public Defender filed a supplemental motion to vacate on July 20, 2016. ECF No. 269. The Government filed a motion to dismiss Defendant's § 2255 motion, citing untimeliness as grounds to dismiss. ECF No. 274. Defense counsel filed a reply. ECF No. 277. This matter was held in abeyance pending the en banc decision of the Fourth Circuit in United States v. Simms, 914 F.3d 229 (4th Cir. 2019), and the decision of the Supreme Court in United States v. Davis, 139 S.Ct. 2319, 2336 (2019). After Simms and Davis were decided, the court entered an order requesting supplemental briefing. ECF No. 319. Defense counsel filed a supplemental brief in support (ECF No. 335) and the Government filed a response in opposition (ECF No. 337).[3] Defense counsel then filed a motion for leave to file a supplemental response, which was granted, and the supplemental response was filed. ECF Nos. 340, 341, 342.

         I. Background

         On March 18, 1998, Defendant was charged via Fourth Superseding Indictment with six counts: 1) conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A); 2) possession with intent to distribute and distribution of a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1); 3) possession with intent to distribute and distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1); 4) felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); 5) attempting to kill an individual with the intent to prevent his attendance and testimony in an official proceeding, in violation of 18 U.S.C. § 1512(a)(1) and (2); and 6) knowingly using and carrying firearms during and in relation to a crime of violence, specifically, an attempt to kill another person with intent to prevent his attendance and testimony at an official proceeding, in violation of 18 U.S.C. § 924(c). ECF No. 43. Defendant pled guilty to Counts 2 and 3. ECF No. 46. Following a jury trial, Defendant was found guilty on Counts 1, 4, 5, and 6. ECF No. 76.

         A PreSentence 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, and a Career Offender under the Sentencing Guidelines. ECF No. 316-1. The PSR found that Defendant's prior South Carolina convictions for aggravated assault and battery (“ABHAN”) in 1987, assault and battery with intent to kill (“ABIK”) in 1989, and involuntary manslaughter in 1991 were violent felonies and his convictions for distribution of crack cocaine in 1993 were for serious drug offenses, all of which qualified as predicate convictions for ACCA and career offender purposes. Id. at ¶¶ 64, 69, 72, 73, 74. The offense level for armed career criminal was driven by Defendant's drug offense level, and resulted in an offense level of 44. The career offender enhancement resulted in offense level of 37. Id. at ¶ 64. Defendant's total offense level for all counts was 46, criminal history category VI, resulting in a mandatory guideline range of Life imprisonment (plus 60 months consecutive on the § 924(c) conviction). Id. at ¶ 98.

         On December 21, 1998, Defendant appeared for sentencing. Defendant was sentenced to Life imprisonment, consisting of Life on Counts 1 and 4, 240 months on Counts 2 and 5, 480 months on Count 3, concurrent, and 60 months consecutive as to Count 6. ECF No. 115. Defendant appealed his convictions and sentence, but the Fourth Circuit affirmed. ECF No. 149.

         On January 10, 2013, Defendant filed a motion to reduce sentence under Amendments 599 and 750. ECF No. 221. The court granted the motion, and reduced Defendant's sentence to a total term of 420 months: 360 months as to Counts 1 and 4, 240 months concurrent as to Counts 2 and 5, 360 months concurrent as to Count 3, and 60 months consecutive as to Count 6. ECF Nos. 223, 224.

         II. Armed Career Criminal Act

         A conviction for felon in possession typically carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. §§ 922(g), 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 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.”

         The statute defines “serious drug offense” as

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.

§ 924(e)(2)(A).

         a. Johnson and Welch

         On June 26, 2015, the Supreme Court held the residual clause of the ACCA violates due process as it “denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 576 U.S. at__, 135 S.Ct. at 2557. By holding the ACCA residual clause unconstitutionally vague, the Court narrowed the violent felony predicate offenses that could serve to enhance a sentence to those that qualify under the enumerated or force clauses. The ACCA residual clause can no longer support a defendant's classification as an armed career criminal. On April 18, 2016, the Supreme Court decided Welch, holding the newly established right recognized in Johnson retroactive to cases on collateral review. 578 U.S.__, 136 S.Ct. at 1259.

         a. Discussion

         Defendant argues, in light of the invalidation of the ACCA residual clause, his predicate convictions for ABHAN and involuntary manslaughter are no longer categorically violent felonies and therefore cannot qualify him as an Armed Career Criminal. ECF No. 335 at 8-9. In previous briefing, Defendant also argued his ABIK conviction could no longer serve as a predicate offense. ECF No. 264 at 4.

         The Government concedes the ABHAN and involuntary manslaughter convictions no longer qualify as predicate offenses for ACCA purposes, but argues this “has no effect on the defendant's overall sentence.” ECF No. 337 at 6. It argues Defendant still qualifies as an Armed Career Criminal based on his ABIK conviction and four prior convictions for distribution of crack cocaine which qualify as separate serious drug offenses because they occurred on separate days. Id. at 8. The Government contends the Shepard documents show these convictions involved actual distribution of controlled substances, and so qualify as predicates under the modified categorical approach. Id. It also notes his ABIK conviction qualifies as a violent felony.

         The PSR identified seven convictions for Armed Career Criminal status: aggravated assault and battery conviction dated August 11, 1988, assault and battery with intent to kill conviction dated January 22, 1990, involuntary manslaughter conviction dated July 1, 1993, and four distribution of crack cocaine convictions dated July 1, 1993. ECF No. 316-1 at ¶¶ 69, 72, 73, 74. The PSR further notes the offense conduct for the four counts of distribution of crack cocaine took place on March 7, 1991, March 17, 1991, May 10, 1991, and June 21, 1991. Id. at ¶ 74.

         Aggravated assault and battery, which both parties agree is now referred to as Assault and Battery of a High and Aggravated Nature, has been held by the Fourth Circuit not to be a violent felony under the ACCA force clause. United States v. Hemingway, 734 F.3d 323, 327 (4th Cir. 2013).[4] Similarly, the Fourth Circuit has held South Carolina involuntary manslaughter is not a violent felony under the ACCA. United States v. Middleton, 883 F.3d 485, 493 (4th Cir. 2018). The court is bound by these published opinions and therefore determines these two convictions cannot count as predicates for ACCA purposes.

         South Carolina assault and battery with intent to kill, however, has been held to be a predicate violent felony under the force clause of the ACCA. United States v. Dinkins, 714 Fed.Appx. 240, 244 (4th Cir. 2017). Although unpublished, the opinion cites two other circuits that have found offenses with mens rea elements requiring similar intent to be violent felonies. Id. (citing United States v. Edwards, 857 F.3d 420, 425 (1st Cir. 2017) (Massachusetts armed assault with intent to murder); Raybon v. United States, 867 F.3d 625, 631-32 (6th Cir. 2017) (Michigan assault with intent to do great bodily harm)). Following the reasoning of Dinkins, the court concludes Defendant's ABIK conviction qualifies as a predicate offense under the ACCA's force clause.

         In addition, Defendant's four South Carolina convictions for distribution of crack cocaine qualify as serious drug offense predicates. In United States v. Furlow, the Fourth Circuit held the South Carolina drug statute §44-53-375(B) divisible and therefore subject to the modified categorical approach. 928 F.3d 311, 320 (4th Cir. 2019). The Government has produced Shepard[5]documents, which show Defendant pled guilty on the same day to four counts of Distribution of ...


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