United States v. Al-Muwwakkil

• Decision Date: 23 December 2020
• Docket Number: No. 18-6201,18-6201
• Citation: 983 F.3d 748
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Akeem Labeeb AL-MUWWAKKIL, a/k/a Willie Moore, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

983 F.3d 748

UNITED STATES of America, Plaintiff – Appellee,

v.Akeem Labeeb AL-MUWWAKKIL, a/k/a Willie Moore, Defendant – Appellant.

No. 18-6201

United States Court of Appeals, Fourth Circuit.

Argued: September 9, 2020

Decided: December 23, 2020

Amended: December 28, 2020

ARGUED: Yotam Barkai, BOIES SCHILLER FLEXNER LLP, New York, New York, for Appellant. Aidan Taft Grano, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Steven I. Froot, Peter M. Skinner, BOIES SCHILLER FLEXNER LLP, New York, New York, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Lisa R. McKeel, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before MOTZ, AGEE and KEENAN, Circuit Judges.

Reversed and remanded by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Keenan joined.

AGEE, Circuit Judge:

In 2001, Akeem Labeeb Al-Muwwakkil was convicted of one count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the heightened penalties of the Armed Career Criminal Act ("ACCA") based on then-uncontested proof that he had at least three violent felony convictions. But in 2015, the Supreme Court's ruling in Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) ( Johnson II¹ ), narrowed the offenses that qualify as violent felonies for ACCA purposes. This change led Al-Muwwakkil to file a 28 U.S.C. § 2255 motion contending that he had been improperly sentenced as an armed career criminal and sought resentencing without the ACCA's enhanced penalties. The district court denied the motion, holding that Al-Muwwakkil still had three violent felony convictions after Johnson II and thus had been sentenced properly. For the reasons set forth below, we reverse the district court's judgment and remand with instructions to grant Al-Muwwakkil's § 2255 motion and hold a new sentencing hearing.

I.

A.

Before turning to the salient facts, a brief discussion of the ACCA and Johnson II is warranted. The ACCA imposes heightened penalties for certain offenders. As relevant here, defendants who are convicted under 18 U.S.C. § 922(g) and who have three or more convictions for a violent felony are subject to a term of imprisonment between fifteen years and life. Compare 18 U.S.C. § 924(e)(1) (ACCA's enhanced penalty), with id. § 924(a)(2) (stating the unenhanced penalty for § 922(g) offenses is a maximum term of 10 years’ imprisonment). This designation can also increase defendants’ offense levels for purposes of calculating their U.S. Sentencing Guidelines range. U.S.S.G. § 4B1.4.

As enacted by Congress, the ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term 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 known as the elements or force clause. Subsection (ii) contains several enumerated offenses; the last—"or otherwise"—clause is usually termed the residual clause.

In Johnson II , the Supreme Court held that the ACCA's residual clause was void for vagueness and thus could not be a predicate conviction for establishing that someone had a violent felony conviction. 135 S. Ct. at 2555–60. Additionally, in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson II was "retroactive in cases on collateral review." Id. at 1268.

B.

At his 2001 sentencing, Al-Muwwakkil did not object to his classification as an armed career criminal, and the district court did not specify which of Al-Muwwakkil's prior convictions it relied upon in finding that he had the requisite three violent felony convictions to be sentenced under the ACCA. Al-Muwwakkil's presentence report identified six of his prior convictions as ACCA predicates: attempted rape; burglary; two convictions for maiming; abduction; and shooting into an unoccupied building. Because the court found that Al-Muwwakkil should be sentenced as an armed career criminal, it followed U.S.S.G. § 4B1.4 when calculating his Sentencing Guidelines range. His offense level of 33, when combined with his criminal history category of VI, yielded a Guidelines range of 235 to 295 months’ imprisonment. Sealed J.A. 160, 164. The district court imposed a sentence of 280 months. We affirmed his conviction and denied a certificate of appealability from the district court's denial of his first § 2255 motion. United States v. Al-Muwwakkil , 48 F. App'x 897 (4th Cir. 2002) (per curiam) (direct appeal); see also United States v. Al-Muwwakkil , 103 F. App'x 509 (4th Cir. 2004) (per curiam) ( § 2255 motion).

In 2016, after the Supreme Court decided Johnson II , Al-Muwwakkil sought and obtained permission to file a successive 28 U.S.C. § 2255 motion challenging his ACCA-based sentence. Order, In re: Akeem Al-Muwwakkil , No. 16-9448 (4th Cir. June 27, 2016), ECF No. 9.

The district court denied the § 2255 motion after concluding that Al-Muwwakkil had three violent felony convictions and had been sentenced properly as an armed career criminal, irrespective of Johnson II ’s holding. See Al-Muwwakkil v. United States , No. 4:16cv91, 2017 WL 745563 (E.D. Va. Feb. 24, 2017). Specifically, the district court held that the two Virginia maiming convictions satisfied the ACCA's force clause and his Virginia burglary conviction fell within the ACCA's enumerated offense of generic burglary. Id. at *4–10. As to the burglary conviction, the court observed that although Virginia's burglary statute was broader than generic burglary because it encompassed more locations than generic burglary, under Fourth Circuit precedent, the statute was divisible by the location burgled and so it could apply the modified categorical approach and review Shepard² -approved documents to determine whether Al-Muwwakkil had "necessarily" been convicted of generic burglary. Id. at *8. In so holding, the district court rejected Al-Muwwakkil's contention "that, after Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), Virginia burglary no longer constitute[d] a divisible offense." Id. at *8 ; see id. at *8–9. The court concluded that the indictment for Al-Muwwakkil's burglary conviction showed that he broke into a "dwelling house," which meant that his conviction was necessarily for the crime of generic burglary and so it qualified as a predicate felony under the ACCA's enumerated offense clause. Id. at *9–10. Having found that Al-Muwwakkil possessed the requisite three violent felony convictions to be sentenced as an armed career criminal, the district court declined to consider whether his other convictions could also serve as ACCA predicates. Id. at *10.

Al-Muwwakkil noted a timely appeal and asked the Court to grant a certificate of appealability. Before the Court could act on that request, we decided Castendet-Lewis v. Sessions , 855 F.3d 253 (4th Cir. 2017), which called into question the district court's rationale for concluding that the Virginia burglary conviction qualified as an ACCA violent felony. See infra at pp. 760–62. Noting the changes in the law since Al-Muwwakkil's original sentencing, the Court granted a certificate of appealability on the following issue: "Whether Al-Muwwakkil has three prior violent felonies and is an armed career criminal in light of the decisions in [ Johnson II ] and Castendet-Lewis [.]" Order, United States v. Al-Muwwakkil , No. 18-6201 (4th Cir. Sept. 18, 2018), ECF No. 6.³

II.

The Court reviews de novo both the district court's denial of Al-Muwwakkil's § 2255 motion, United States v. Poindexter , 492 F.3d 263, 267 (4th Cir. 2007), and the determination that a defendant's prior convictions qualify as a violent felony under the ACCA, United States v. Winston , 850 F.3d 677, 683 (4th Cir. 2017).

On appeal, Al-Muwwakkil does not challenge the district court's determination that his two convictions for maiming count as ACCA predicates. Therefore, the sole issue before us is whether he also has the requisite third violent felony conviction. Al-Muwwakkil asserts he does not, while the Government contends that three of his other convictions qualify: burglary, attempted rape, and use of a firearm during an abduction.⁴ We address each in turn, but begin with a brief discussion of how courts determine if a particular statute satisfies the ACCA's definition of a violent felony.

To determine if a conviction qualifies as a "violent felony," courts must "look only to the statutory definition—i.e. , the elements" of the offense of conviction rather than "the particular facts underlying" a defendant's conviction. Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). In a "narrow range of cases" courts may use the "modified categorical approach" because "a statute with alternative elements" is deemed " ‘divisible’––i.e., comprises multiple, alternative versions of the crime."

Id. at 261-62, 133 S.Ct. 2276 (quoting Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ). When a defendant is convicted of violating a divisible statute, courts can "look beyond the statutory elements ‘to the charging paper and jury instructions’ " ( Shepard -approved documents) to determine what offense the defendant was convicted of committing. Id. (quoting Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ).

In Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), the Supreme Court reiterated how to distinguish a statute that sets out different means of committing a single offense (to which the categorical...