King v. United States

• Decision Date: 24 August 2016
• Docket Number: CASE NO. 16-22261-CIV-LENARD/WHITE
• Citation: 202 F.Supp.3d 1346
• Parties: Gregory KING, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

202 F.Supp.3d 1346

Gregory KING, Movant,

v.UNITED STATES of America, Respondent.

CASE NO. 16-22261-CIV-LENARD/WHITE

United States District Court, S.D. Florida.

August 24, 2016

Arun Ravindran, Federal Public Defender, Miami, FL, for Plaintiff.

Matthew John Langley, US Attorney's Office, Miami, FL, for Defendant.

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

SUA SPONTE NON-FINAL ORDER DISMISSING WITHOUT PREJUDICE MOVANT'S MOTION TO VACATE (D.E. 5)

THIS CAUSE is before the Court on Movant Gregory King's Second Motion to Correct Sentence pursuant to 28 U.S.C. § 2255, ("Motion," D.E. 5), filed June 24, 2016. Magistrate Judge Patrick A. White issued a Report and Recommendation ("Report," D.E. 9) on June 30, 2016, recommending that the Court grant the Motion on the basis of the parties' joint stipulation. For the reasons stated herein, the Court dismisses Movant's Motion to Vacate and rejects the Report as moot.

I. Introduction

On August 31, 2007, Movant was adjudicated guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. King , 07–20253–Cr–Lenard (S.D.Fla. Aug. 31, 2007) (D.E. 25). The Court sentenced Movant under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), to 180 months' imprisonment, to be followed by four years of supervised release. See id.

An individual adjudicated guilty of being a felon in possession of a firearm under 18 U.S.C. § 922(g) is subject to a maximum sentence of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, if the defendant has three prior convictions for a "violent felony or a serious drug offense," the ACCA enhances the sentence to a mandatory minimum fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). 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; 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). Subsection (i) is referred to as the "elements clause"; subsection (ii)'s first nine words are referred to as the "enumerated clause"; and subsection (ii)'s final thirteen words are referred to as the "residual clause." See In re Rogers , 825 F.3d 1335, 1338 (11th Cir.2016).

In Johnson v. United States , the United States Supreme Court held that the ACCA's residual clause is unconstitutionally vague. ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). In Welch v. United States , the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

Movant argues that after the Supreme Court's decision in Johnson , he no longer qualifies for an enhanced sentence under the ACCA. (Mot. at 2.) Accordingly, he seeks an Amended Judgment imposing a sentence of 120 months' imprisonment. (Joint Stipulation, D.E. 10 at 3.)

II. Background and Procedural History

On June 15, 2007, Movant pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See King , 07-20253-Cr-Lenard (D.E. 18). At the time of sentencing on August 31, 2007, the Presentence Investigation Report ("PSI") recommended that the Movant receive a sentence enhancement pursuant to the ACCA, 18 U.S.C. § 924(e),¹ and identified all of the Movant's prior convictions.²

Neither the Government nor the Defendant objected to the PSI.³ At the sentencing hearing, the Court first adopted the factual findings and guideline applications in the Report and then sentenced Movant as an armed career criminal pursuant to the ACCA, the PSI and the governing law.⁴ No explicit findings were made on the record at the time of sentencing as to whether the residual, enumerated or elements clause (or any combination thereof) applied to Movant's predicate offenses.

On October 9, 2008, Movant filed his first Motion under 28 U.S.C. § 2255 to vacate his sentence. See King v. United States , 08-22820-CV-Lenard (S.D. Fla. Oct. 9, 2008) (D.E. 1). Magistrate Judge White entered a Report and Recommendation (08-22820, D.E 11) on February 9, 2009, recommending dismissal of Movant's claims as time-barred, and alternatively, denial of Movant's claims on the merits. Judge White agreed with Movant that his strong-arm robbery conviction did not qualify as a predicate offense under the ACCA—but noted that Movant had at least three other convictions that counted as predicate offenses.⁵ (Id.) Movant filed two sets of objections to Judge White's Report, arguing that: (1) his Motion was timely; (2) strong-arm robbery does not qualify as a predicate offense under the ACCA; (3) grand theft does not qualify as a predicate offense under the ACCA; and (4) his convictions for grand theft (F01-18843), distribution of cocaine (F01-013037 and F01-013038) and possession of a controlled substance (F01-030566) all occurred on the same day and thus may only qualify as one ACCA predicate offense. (08-22820, D.E. 12 and 14.) On April 8, 2009, Movant filed a Supplemental Objection, arguing that his burglary conviction did not qualify as "generic burglary" and therefore could not be counted as an ACCA predicate. (08-22820, D.E. 15.) On June 5, 2009, this Court overruled Movant's objections, adopted Judge White's Report and denied Movant's first 2255 Motion. (08-22820, D.E. 18). The Court also denied Movant's Motion for a Certificate of Appealability. (08-22820, D.E. 22) Movant appealed the Court's decision to the Eleventh Circuit which also denied him a certificate of appealability. (08-22820, D.E. 33 and 34.)

After the Supreme Court issued its decision in Welch , 136 S.Ct. at 1257, Movant filed an application under Section 2255(h) seeking permission from the Court of Appeals to file a second or successive 2255 motion. On June 16, 2016, the Eleventh Circuit granted Movant's application to file a second or successive 2255 motion, finding that because the District Court made no explicit findings at the time of sentencing "King [ ] met his burden of making a prima facie showing that his application contains the rule announced in Johnson and that he is reasonably likely to benefit from that rule." (D.E. 1 at 9.) On June 24, 2016, Movant, who is now represented by counsel, filed his second 2255 Motion. (D.E. 5.)

Movant argues that since the Supreme Court declared the ACCA's residual clause unconstitutional, see Johnson , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, an insufficient number of his prior convictions now qualify as "violent felonies" or "serious drug offenses." Movant concedes that one of his drug distribution convictions is a predicate offense under the ACCA, but argues that none of his other convictions qualify under the ACCA's elements or enumerated clauses. Movant bases his assertion on his legal assumption that Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2257, 195 L.Ed.2d 604 (June 23, 2016), apply retroactively when determining whether his prior convictions constitute predicate offenses under the ACCA's elements and enumerated clauses. The Government initially accepted this legal assumption in its Response and Stipulation—without any legal citation or analysis.

On June 29, 2016, the Government filed a two-page notice agreeing that the Movant's sentence should be vacated. (D.E. 8.) Judge White entered a Report recommending that the Court vacate Movant's sentence pursuant to Johnson . (D.E. 9 at 3.) The Report relied exclusively on the Government's concession and did not engage in any substantive analysis. Thereafter, Movant and the Government filed a Joint Stipulation that Defendant should be re-sentenced to 120 months—the statutory maximum allowed under 18 U.S.C. § 924(g).⁶

Because the Report and the parties failed to address the discrete issues raised herein, and given the Court's duty to determine whether it has jurisdiction over this matter, see In re Morgan , 717 F.3d 1186, 1193 (11th Cir.2013) ("The bar on second or successive motions is jurisdictional, so [courts] must determine whether an application to file a second or successive motion is based on a claim involving 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable...' "), the Court ordered the parties to file supplemental briefs on July 15, 2016. (D.E. 11.) On July 20, 2016, Movant filed his Supplemental Brief which repeated his earlier arguments regarding the retroactivity of Descamps and Mathis . (D.E. 15.) Movant's Supplemental Brief did not address whether his convictions would have qualified under the enumerated or elements clause at the time of sentencing if the Court were to find that Descamps and Mathis are inapplicable to the § 2255(a) and (h) analyses.

On July 27, 2016, the Government filed its Supplement Brief, withdrawing its previous pleadings and opposing Movant's 2255 Motion. (D.E. 16.) The Government now argues that "Descamps plays no role in the District Court's determination of whether Movant has met his burden of establishing that he was in fact sentenced under the residual clause, unless Descamps was precedent at the time of sentencing." (Id. at 6.) Instead, the Government asserts that district courts must "make an objective assessment of whether there is a reasonable likelihood that the defendant's ACCA-enhanced sentence necessarily depended on the now-constitutionally-invalid residual clause, which implicates Johnson , or whether the sentence instead was based on the enumerated crimes or elements clauses, which Johnson did not disturb." (Id. at 9.) Reviewing Movant's arguments and underlying predicate offenses, the Government now concludes that neither the record...