United States v. Winston

Citation850 F.3d 677
Decision Date13 March 2017
Docket NumberNo. 16-7252,16-7252
Parties UNITED STATES of America, Plaintiff–Appellee, v. Robert McKinley WINSTON, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Shedd and Senior Judge Davis joined.

BARBARA MILANO KEENAN, Circuit Judge:

Robert Winston was convicted in 2002 on a federal firearm charge and was sentenced to serve a term of 275 months' imprisonment. His sentence included an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based in part on his prior conviction for the Virginia crime of common law robbery (Virginia common law robbery) as a qualifying predicate "violent felony." Winston filed a motion under 28 U.S.C. § 2255 for post-conviction relief, contending that his robbery conviction no longer qualified as a predicate offense under the ACCA after the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (Johnson II ), which invalidated a portion of the ACCA's definition of "violent felony."

The district court denied Winston's motion, concluding that Virginia common law robbery continues to qualify as a violent felony because the crime has as an element the "use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The court also rejected the government's argument that Winston was barred from obtaining post-conviction relief on procedural grounds.

Upon our review, we agree with the district court's rejection of the government's procedural arguments, because Winston sufficiently has shown that he relied on a new rule of constitutional law. However, we disagree with the district court's substantive conclusion and hold that Winston's conviction for Virginia common law robbery does not constitute a violent felony under the ACCA, because the full range of conduct covered by the Virginia crime does not necessarily include the use of "force capable of causing physical pain or injury to another person." See Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (Johnson I ). We therefore vacate the judgment of the district court, and remand the case for further proceedings.

I.

In 2002, Winston was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In determining Winston's sentence, the district court concluded that Winston qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), which mandates a fifteen-year minimum sentence for defendants convicted of a firearm offense who have three or more prior convictions for violent felonies or serious drug offenses. Without these predicate convictions, Winston would not have qualified as an armed career criminal and would have been subject to a ten-year maximum sentence. See 18 U.S.C. 924(a)(2).

The ACCA defines the term "violent felony" as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another (the force clause); or
(ii) is burglary, arson, or extortion, involves use of explosives (enumerated crimes clause), or otherwise involves conduct that presents a serious potential risk of physical injury to another (residual clause).

Id . § 924(e)(2)(B) (naming conventions added). Winston's relevant prior convictions, as set forth by the probation officer in Winston's presentence report, included (1) rape in violation of the Uniform Code of Military Justice (UCMJ), (2) robbery in violation of Virginia law,1 (3) possession of cocaine with the intent to distribute in violation of Virginia law, and (4) distribution of cocaine base in violation of federal law. Based on these convictions, the probation officer recommended that the court sentence Winston as an armed career criminal, with a guideline range of between 210 and 262 months in prison.

Winston challenged his armed career criminal designation, but the district court overruled Winston's objection. The court adopted the recommendations in the presentence report, and departed upward from the guideline range to impose a sentence of 275 months' imprisonment. In 2003, this Court affirmed Winston's conviction and sentence. United States v. Winston , 68 Fed.Appx. 412 (4th Cir. 2003) (unpublished).

On June 26, 2015, the Supreme Court in Johnson II held that the ACCA's residual clause is unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment. 135 S.Ct. at 2555-57. The Court held that the residual clause did not articulate clearly how to evaluate the risks of injury posed by a crime, depriving defendants of fair notice regarding their potential sentence and inviting "arbitrary enforcement by judges." Id. at 2557. The Court further clarified that even though the residual clause is void, the force clause and the enumerated crimes clause remained valid as defining the scope of a predicate violent felony. Id. at 2563. The Supreme Court later held that its decision in Johnson II had announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1264–65, 194 L.Ed.2d 387 (2016) (applying the framework in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), for determining whether a new rule applies on collateral review).

Relying on Johnson II , Winston filed a motion under 28 U.S.C. § 2255 asking the district court to vacate his ACCA-enhanced sentence and to order his immediate release from incarceration, because he already had served more than the 10-year maximum sentence otherwise applicable to his conviction.2 Winston asserted that his prior convictions of rape under the UCMJ and Virginia common law robbery, which both qualified as violent felonies under the now-void residual clause, do not otherwise qualify as predicate offenses under the ACCA's force clause.3

The government disagreed with Winston's substantive argument, but also requested that the district court dismiss Winston's § 2255 motion on procedural grounds. The government asserted that because Winston failed to show that the sentencing court relied exclusively on the now-void residual clause in sentencing him under the ACCA, he was not entitled to post-conviction relief.

The district court first rejected the government's procedural argument, concluding that the merits of Winston's claim "should be decided." With respect to the substantive claim, the court determined that Virginia common law robbery qualifies as a violent felony under the ACCA force clause, because the offense "has as an element the use, attempted use, or threatened use of physical force against the person of another." The court therefore held that Winston properly was sentenced as an armed career criminal because he had at least three predicate offenses, namely, the violent felony of Virginia common law robbery and two undisputed serious drug offenses. Accordingly, the district court did not address whether Winston's rape conviction continued to qualify as a violent felony.

One week after the district court entered its judgment, we issued our decision in United States v. Gardner , 823 F.3d 793 (4th Cir. 2016), and held that the North Carolina crime of common law robbery (North Carolina common law robbery) does not qualify as a violent felony. In light of our decision in Gardner , the district court reconsidered its decision but did not alter its conclusion that Virginia common law robbery qualifies as a violent felony for purposes of the ACCA enhancement. The district court nevertheless issued Winston a certificate of appealability to this Court in accordance with 28 U.S.C. § 2253(c), because "reasonable jurists could debate" the "constitutionality of [Winston's] ACCA-enhanced sentence." See Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

After Winston filed his appellate brief in this Court, the parties discovered that Winston previously had filed a motion for relief under 28 U.S.C. § 2255 and that, therefore, the district court had lacked jurisdiction to consider Winston's successive § 2255 motion without authorization from this Court under 28 U.S.C. § 2255(h). Upon Winston's motion, we dismissed his appeal, construed his notice of appeal as a request to file a successive § 2255 motion, and granted that request. See In re Hubbard , 825 F.3d 225, 229 (4th Cir. 2016) (citing 28 U.S.C. §§ 2255(h) and 2244(b)(3)(C), and explaining that a petitioner may gain permission to file a successive § 2255 motion by making a prima facie showing that he presents a claim relying on a new rule of constitutional law).

Accordingly, Winston filed a successive § 2255 motion in the district court. The court adopted its prior decision and once again issued a certificate of appealability. Winston timely filed this appeal.

II.
A.

We first address the government's contention that the district court should have dismissed Winston's appeal on procedural grounds. The government contends that post-conviction relief under 28 U.S.C. § 2255 is unavailable to Winston because he does not rely on a new rule of constitutional law, as required by 28 U.S.C. §§ 2244(b)(4) and 2244(b)(2)(A). According to the government, because the record does not establish that the...

To continue reading

Request your trial
194 cases
  • United States v. West, Criminal Case No. 04-93 (RJL)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 13 Julio 2018
    ...need only show that his sentence "may have been predicated on application of the now-void residual clause." United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017) (emphasis added); see also, e.g., United States v. Geozos , 870 F.3d 890, 896 (9th Cir. 2017) ; Booker , 240 F.Supp.3d at ......
  • United States v. Snyder
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 21 Septiembre 2017
    ...I would allow Mr. Snyder to rely on § 2255(f)(3) and I would conclude that the petition is timely. See United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) ("We therefore hold that when an inmate's sentence may have been predicated on application of the now-void residual clause and, ......
  • United States v. Allred
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 7 Noviembre 2019
    ...approach. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ; see also United States v. Winston , 850 F.3d 677, 683 & n.5 (4th Cir. 2017). In that mode of analysis, we focus "only [on] the elements of the ... offense and the fact of conviction, not [on] ......
  • United States v. Diaz, 16-4226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 26 Julio 2017
    ...this Court addressing the divisibility of Virginia common law robbery supports a finding of indivisibility here. In United States v. Winston , 850 F.3d 677 (4th Cir. 2017), we concluded that Virginia common law robbery, which proscribes "taking, with intent to steal, of the personal propert......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT