Robinson v. United States
| Decision Date | 01 May 2018 |
| Docket Number | Case No. 7:91cr00036 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | THOMAS WILLIAM ROBINSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
This matter is before the court on Petitioner Thomas William Robinson's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. ECF No. 34. Robinson asserts that he no longer qualifies as an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and that he no longer qualifies as a career offender under United States Sentencing Guidelines ("U.S.S.G.") §§ 4B1.1 and 4B1.2. He argues that he does not have the requisite predicate convictions necessary to support such designations following the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), ("Johnson II")1, as well as recent Fourth Circuit case law. After careful review of the record, and in light of Johnson II, the court will deny Robinson's § 2255 motion, and grant the government's motion to dismiss.
On September 9, 1991, Robinson pleaded guilty to: four counts of aiding and abetting an armed bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a), and 2113(d); four counts of possessing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c); and three counts of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). A Presentence Investigation Report ("PSR") was created prior to sentencing. Although the PSRdid not specify on which convictions it relied to support its recommendation of an enhanced ACCA and Guidelines sentence, the following convictions could have been used to support Robinson's status as an armed career criminal: a 1972 Virginia conviction for armed robbery; a 1972 Virginia conviction for two counts of burglary; a 1974 Virginia conviction for armed robbery; a 1974 Virginia conviction for possession of marijuana with intent to distribute; a 1975 Virginia conviction for escape from custody; a 1975 Virginia conviction for three counts of robbery; a 1975 Virginia conviction for armed robbery; a 1976 Virginia conviction for four counts of armed robbery; a 1976 North Carolina conviction for armed robbery; a 1976 Virginia conviction for robbery; and a 1982 Virginia conviction for two counts of feloniously injuring an employee of a penal institution. PSR ¶¶ 57, 58, 60 - 67, and 69, ECF No. 36. On December 9, 1991, I adopted the PSR and sentenced Robinson to a term of 400 months' imprisonment. Robinson did not appeal.
On September 8, 2015, in accordance with Standing Order 15-5, the court appointed the Federal Public Defender's Office to represent Robinson with regard to any claim for relief that he might have under § 2255 following the Johnson II decision. Defense counsel filed this § 2255 motion alleging that Johnson II invalidated Robinson's enhanced sentence because his Virginia predicate convictions for burglary, armed robbery, escape, and causing injury to a corrections officer no longer qualify as violent felonies. The government responded, arguing that the Johnson II decision does not afford Robinson relief because he continues to have the requisite number of predicate offenses to support his armed career criminal and career offender status.
To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that"the court was without jurisdiction to impose such sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Robinson bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
Robinson challenges the enhanced sentence he received because I determined him to be an armed career criminal. Federal law prohibits convicted felons from possessing firearms. 18 U.S.C. § 922(g). Defendants who violate this law are subject to a term of up to ten years' imprisonment. 18 U.S.C. § 924(a)(2). When defendants convicted of a § 922(g) charge have three or more prior convictions for "serious drug offenses" or "violent felonies," however, they qualify as armed career criminals under the ACCA. Armed career criminals face an increased punishment: a statutory mandatory minimum of fifteen years' imprisonment and a maximum of life. 18 U.S.C. § 924(e)(1).
In Johnson II, the Supreme Court invalidated part of the definition of "violent felony" under the ACCA. 135 S. Ct. at 2563. The ACCA defines a "violent felony" as:
18 U.S.C. § 924(e)(2)(B). In Johnson II, the Supreme Court reviewed the second part of subsection (ii) of the violent felony definition. It concluded that the clause, known as the "residual clause," which provides, "or otherwise involves conduct that presents a serious potential risk of physical injury to another," was unconstitutionally vague. 135 S. Ct. at 2563. The Supreme Court did not, however, strike down the other portions of the violent felony definition, which include subsection (i), known as the "force clause," and the first part of subsection (ii), delineating specific crimes, known as the "enumerated crimes clause." Johnson II, 135 S. Ct. at 2563 (). In addition, Johnson II did not affect the definition of "serious drug offenses," convictions for which continue to support an enhanced ACCA sentence. Therefore, the Johnson II decision only limited the types of prior convictions that can act as predicate "violent felonies" under the residual clause. The Supreme Court's decision in Johnson II announced a new rule of constitutional law that applies retroactively to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016).
Robinson asserts that he no longer has the requisite three predicate offenses necessary to support his status as an armed career criminal. While I agree that Robinson's prior convictions for Virginia burglary, robbery, and escape do not support his status as an armed career criminal, he continues to have at least three predicates that support his ACCA sentence.
Robinson has one conviction for two counts of burglary. While some state burglary convictions continue to qualify as violent felonies under the enumerated crimes clause of theACCA, which lists burglary specifically, Virginia burglary does not so qualify. For a burglary conviction to qualify under the ACCA, it must have been a conviction for "generic burglary," or "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575, 598 (1990). However, the Fourth Circuit has recently concluded that the Virginia burglary statute criminalizes conduct that falls outside of the generic definition, and the statute is also not divisible into generic and non-generic burglary crimes. Castendet-Lewis v. Sessions, 855 F.3d 253, 261, 264 (4th Cir. 2017) (). Therefore a Virginia burglary conviction can no longer support an ACCA enhanced sentence. See United States v. Hadsell, 692 Fed. App'x 161, 161 (4th Cir. 2017) (vacating and remanding a defendant's sentence because a prior Virginia burglary conviction had been used to support an enhanced ACCA sentence and noting that a "Virginia statutory burglary conviction does not qualify as the ACCA-enumerated offense of 'burglary'").
Another predicate offense that can no longer support Robinson's enhanced sentence is his Virginia conviction for common law robbery. In order for a robbery conviction to qualify as a violent felony for ACCA purposes, it must fall under the "force clause" and have "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 Supreme Court has defined "physical force" as "violent force . . . capable of causing physical pain or injury to another person." Johnson I, 559 U.S. at 140. The Fourth Circuit has concluded that Virginia convictions for common law robbery cannot support an enhanced sentence because such a conviction can result without the use of violent force.Winston, 850 F.3d at 686. Accordingly, Robinson's Virginia robbery conviction also does not support his status as an armed career criminal.
Finally, Robinson's conviction for escape from custody cannot support his enhanced sentence. An escape can be effectuated without violent force, and after Johnson II, such a conviction can no longer qualify as a predicate under the residual clause. See, e.g., Johnson II, 135 S. Ct. at 2563 (). Accordingly, those convictions no longer support Robinson's status as an armed career criminal.
Nonetheless, Robinson's convictions for possession of marijuana with intent to distribute, armed robbery and feloniously injuring...
To continue reading
Request your trial