United States v. Bryant
| Decision Date | 15 February 2017 |
| Docket Number | Case No. 7:12CR00062 |
| Parties | UNITED STATES of America, v. Randy Lee BRYANT, Jr., Petitioner. |
| Court | U.S. District Court — Western District of Virginia |
Ronald Andrew Bassford, United States Attorneys Office, Roanoke, VA, for United States of America.
Petitioner Randy Lee Bryant, Jr. brings this habeas corpus petition pursuant to 28 U.S.C. § 2255, asking the court to vacate or correct his sentence in light of the United States Supreme Court's recent decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). ECF No. 28. The government has moved to dismiss Bryant's § 2255 motion, ECF No. 33, and Bryant has responded. ECF No. 35. For the reasons that follow, the court will GRANT Bryant's § 2255 motion and DENY the United States' motion to dismiss.1
On February 20, 2013, a criminal judgment was entered sentencing Bryant to a term of 188 months of incarceration for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Because the court determined that Bryant had three or more qualifying convictions under the Armed Career Criminal Act (the "ACCA"), he was subject to 18 U.S.C. § 924(e)'s mandatory minimum sentence of 180 months, rather than the 120–month maximum sentence otherwise authorized under § 924(a)(2). The court calculated the sentencing guideline range as being 188 to 235 months and sentenced Bryant to serve the low end of that range in prison.
The Presentence Investigation Report ("PSR") does not set out which of his prior convictions qualified to enhance his sentence under the ACCA. However, the PSR indicated at paragraph 16 that Bryant was subject to a mandatory term of imprisonment of 15 years under 18 U.S.C. § 924(e)(1). The PSR listed the following convictions which may have served as the ACCA predicates at the time: Paragraph 21, a 2001 conviction for West Virginia voluntary manslaughter; Paragraph 22, a 2001 conviction for West Virginia breaking and entering; Paragraph 23, a 2001 West Virginia conviction for breaking and entering, auto; and Paragraph 25, three 2009 convictions for Virginia statutory burglary. Bryant made no objection to the PSR, nor did he appeal his sentence.
On June 23, 2016, Bryant filed a motion to vacate his sentence under 28 U.S.C. § 2255. ECF No. 28. In his petition, Bryant challenged the determination that any of these convictions met the definition of a violent felony under § 924(e). In its motion to dismiss, the government conceded that the two West Virginia breaking and entering convictions were not qualifying convictions under the ACCA based on the Fourth Circuit Court of Appeals' decision in United States v. White , 836 F.3d 437 (4th Cir. 2016).
The issue now facing this court is whether, following the decisions of the United States Supreme Court in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States , –––U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Bryant's ACCA enhancement for his prior convictions remains lawful.2
Under 28 U.S.C. § 2255, a federal inmate may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief where "the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a). If the court determines the sentence was unlawfully imposed, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).
A convicted felon found guilty of possessing a firearm faces a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). However, the ACCA provides for a mandatory minimum sentence of 180 months when a defendant was previously convicted of at least three prior serious drug offenses or violent felonies. Id. § 924(e)(1). A violent felony is defined as:
Id. § 924(e)(2)(B) (strikeout added).
In 2015, the Supreme Court invalidated the language stricken above after finding it void for vagueness. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II ").3 Though often parsed into three clauses—the force clause, the enumerated clause, and the residual clause— § 924(e)(2)(B) is comprised of two numbered subsections. See Begay v. United States , 553 U.S. 137, 142–44, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Specifically, the first subsection states:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
18 U.S.C. § 924(e)(2)(B) ("Subsection (i)"). The second subsection states:
(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....
Id. ("Subsection (ii)"). Subsection (ii)—the only part of the statute at issue in Bryant's claim—lists several specific "enumerated offense" crimes—burglary, arson, extortion, and use of explosives—that amount to violent felonies. Subsection (ii) goes on to encompass any crime that "otherwise involves conduct that presents a serious potential risk of injury."
The second portion of Subsection (ii)—the part of the statute deemed unconstitutional in Johnson II —is often called the "residual clause." The residual clause refers to crimes that are "similar to the listed examples in some respects but different in others—similar, say, in respect to the degree of risk it produces, but different in respect to the ‘way or manner’ in which it produces that risk." Begay , 553 U.S. at 144, 128 S.Ct. 1581. Accordingly, a crime, for ACCA purposes, cannot qualify as both an enumerated offense and as a residual offense. Id. A contrary interpretation would read the word "otherwise" out of Subsection (ii). Id. Rather, a predicate conviction is an enumerated offense, a residual offense similar to an enumerated offense, or neither. This understanding of § 924(e) was confirmed in James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and aligns with the court's conclusion in this case.
In James, the Supreme Court determined that neither attempted burglary nor Florida's burglary statute was properly considered as an enumerated offense under Subsection (ii). Id. at 212–13, 127 S.Ct. 1586. This is so because, as explained below, the enumerated offense of burglary has been defined by the Supreme Court in a manner that is incongruous with the way many states have written their burglary statutes. Because Florida's version of burglary and attempted burglary did not fall within the definition of generic burglary, but posed a degree of risk similar to the ACCA's enumerated version of burglary, the government could rely "on the residual provision of [Subsection (ii) ], which—as the Court has recognized—can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary." Id.
Thus, when the Court struck down the ACCA's residual clause in Johnson II , the ACCA enhancement applied in James , based solely on the residual clause, fell as well.4 135 S.Ct. at 2563 .
Whether the Virginia crime of statutory burglary falls within the enumerated clause portion or the residual clause portion of Subsection (ii) is dispositive in determining whether Johnson II reaches Bryant's conviction under the ACCA. Because the court determines that Virginia statutory burglary—now and since Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), was decided—does not qualify as one of the enumerated offenses in Subsection (ii) of § 924(e)(2)(B), Bryant's claim is both timely and procedurally proper, and his enhanced sentence is unlawful in light of Johnson II .
The federal habeas corpus statute under which Bryant seeks relief, 28 U.S.C. § 2255(f), contains a one-year statute of limitations. The government argues that Bryant's habeas petition is untimely as it was not filed within one year of the date his judgment became final. 28 U.S.C. § 2255(f)(1). Bryant contends that his petition was timely filed pursuant to § 2255(f)(3), as he filed it within one year of the Supreme Court's decision in Johnson II . Under § 2255(f)(3), the one-year statute of limitations period begins on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactive applicable to cases on collateral review." In Welch , the Supreme Court held that its decision in Johnson II announced a new substantive rule that has retroactive effect in cases on collateral review.
The government responds that Johnson II has nothing to do with Bryant's case. Bryant was convicted of three Virginia burglaries, which the government contends were enumerated offenses under the ACCA, and Johnson II expressly held that it had no effect on the operation of the enumerated clause.
Because, as explained below, statutory burglary in Virginia is broader than Taylor 's definition of generic burglary, Bryant's...
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