United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
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). 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.
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). 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.
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.
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.
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.
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.
Armed Career Criminal Act
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 . . . .
relevant to this case, the statute defines “violent
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.”
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.
Johnson and Welch
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.
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.
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.
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.
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). 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.
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.
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 Sheparddocuments, which
show Defendant pled guilty on the same day to four counts of
Distribution of ...