Weaver v. United States

• Decision Date: 02 October 2020
• Docket Number: CV 119-142
• Parties: JOHNNY LEE WEAVER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Georgia

JOHNNY LEE WEAVER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CV 119-142

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

October 2, 2020

(Formerly CR 114-030)

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner Johnny Lee Weaver filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, as well as a motion to expand the record and a motion to amend his original § 2255 motion. Respondent moves to dismiss the original § 2255 motion. For the reasons set forth below, the Court REPORTS and RECOMMENDS the motion to expand the record be GRANTED, (doc. no. 12), the motions to amend and for leave to file an additional reply brief in support of amendment be DENIED, (doc. nos. 15, 18), the motion to dismiss be GRANTED, (doc. no. 8), the § 2255 motion be DISMISSED without appointing counsel, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

A. Pretrial Proceedings

1. Indictment and Penalty Certification

In an indictment returned on March 5, 2014, a grand jury in the Southern District of Georgia charged Petitioner, and variously two co-defendants, in a five count indictment as follows: Count One, conspiracy to rob a commercial business, in violation of 18 U.S.C. § 1951; Count Two, conspiracy to use firearms during violent crimes, in violation of 18 U.S.C. § 924(o); Count Three, robbery of a commercial business, in violation of 18 U.S.C. § 1951; Count Four, using, carrying, and brandishing a firearm during a crime of violence as charged in Count Three, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and Count Five, possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). United States v. Weaver, CR 114-030, doc. no. 1 (S.D. Ga. Mar. 5, 2014) (hereinafter "CR 114-030").

Counts One, Two, and Three each carried a possible prison sentence of not more than twenty years. Id., doc. no. 2. Count Four carried a possible prison term of not less than seven years if brandished, consecutive to any other sentence imposed. Id. at 2. Count Five carried a possible prison term of not less than fifteen years nor more than life. Id. The Court appointed attorney David M. Stewart to represent Petitioner. Id., doc. no. 37.

Both of Petitioner's co-defendants entered agreements with the government to plead guilty, (id., doc. nos. 43-45, 52, 62-63), and Chief United States District Judge J. Randal Hall set Petitioner's jury trial for July 14, 2014. Id., doc. no. 51. Prior to trial, Petitioner and the government stipulated to several facts, including that Petitioner was a convicted felon on the date he was charged with illegally possessing firearms and that the firearms listed in the indictment had been shipped and transported in interstate or foreign commerce before the date possession was alleged. Id., doc. nos. 68, 69.

B. Trial

The facts developed at trial showed the following:

[Petitioner], along with Jaron Wallace and Saintwain Roberts, robbed a Family Dollar store in Augusta, Georgia. Two of the men robbed the store, with a third driving a getaway car. Driving away from the laundromat next door, Denise Murray and her son, Kendrick Murray, saw the robbers exit the Family Dollar. One of the men wore a camouflage jacket, pants, and hat. Denise Murraytestified that the man in camouflage looked at her twice, "like he was trying to figure out why we was trailing beside them as they ran."

Two police officers arrived at the scene shortly after the robbery. Kendrick Murray described to the police the robbers' black car and the direction in which it was heading. The police chased the car, reaching speeds in excess of 100 miles per hour. When the car pulled into a convenience store parking lot, three men jumped out of the car and fled on foot. The police arrested two of the men—Roberts and Wallace—but not the third.

The police discovered that the car contained items stolen from the Family Dollar, a handgun, and a camouflage jacket and hat. The car, the handgun, and the camouflage clothing belonged to a friend with whom [Petitioner] was staying. The police also found [Petitioner's] fingerprint on the car's front passenger window.

United States v. Weaver, 760 F. App'x 745, 747-48 (11th Cir. 2019) (per curiam). Over objection, the government introduced evidence at trial that Petitioner had been identified as the third robber from a photo lineup by Denise Murray and Petitioner's two co-defendants; Ms. Murray identified Petitioner "in court as the man wearing camouflage who had run out of the Family Dollar Store." Id. at 748.

At the end of the three-day trial that included fifteen witnesses and more than sixty exhibits, the jury deliberated approximately forty-eight minutes before finding Petitioner guilty of all five counts of the indictment. CR 114-030, doc. no. 137 (Trial Tr.), pp. 1-4, 441, 443-44.

C. Sentencing

The United States Probation Office prepared the Presentence Investigation Report (PSI) using the November 1, 2014 Guidelines Manual. PSI ¶ 15. After extensive discussion at the sentencing hearing regarding Petitioner's status as a career offender and armed career criminal, (CR 114-030, doc. no. 138 (Sent. Tr.), pp. 22-27), the PSI was modified to reflect resolution of the objections on Petitioner's dual status and Judge Hall's determination Petitioner had"sufficient qualifying convictions to trigger the application of the career offender and the armed career criminal enhancement." Id. at 27. In the course of determining Petitioner qualified as both a career offender and armed career criminal, the Probation Officer explained, and Judge Hall agreed, in addition to the three predicate offense specifically delineated as supporting the enhancement, Petitioner had four other convictions that qualified as predicate offenses. Id. at 26-27. The three Florida convictions counted against Petitioner were aggravated battery, armed robbery, and strong-arm robbery. Id. at 25; PSI ¶¶ 47, 48, 50. The convictions that also would have been qualifying predicate convictions for an armed career criminal included: aggravated battery on a police officer and battery on a school board employee, delivery with intent to distribute cocaine, strong-arm robbery, and burglary of an unoccupied dwelling. PSI ¶¶ 40, 41, 44, 46.

Thus, the PSI as adopted by Judge Hall set a Total Offense level of thirty-three, a Criminal History Category of VI, and a Guidelines imprisonment range of 235 to 293 months as to Count One, but because of the mandatory, consecutive eighty-four month sentence required by conviction on Count Four, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), the effective Guidelines imprisonment range was 319 to 377 months. PSI ¶ 75. Because of Petitioner's designation as a career offender and his Count Four, § 924(c) conviction, the Guidelines range ultimately became 360 months to life. Id. The minimum statutory sentence permitted under the verdict was 264 months because conviction on the § 924(c) charge in Count Four required an eighty-four-month mandatory minimum sentence to be served consecutive to the felon in possession conviction on Count Five carrying a 180-month mandatory minimum sentence. PSI ¶¶ 74, 75. These mandatory minimum sentences were exclusive of the maximum twenty-year terms on each conviction for Counts One through Three. PSI ¶ 74.

After hearing from counsel and Petitioner, Judge Hall imposed the 360-month sentence, calculated as follows: 240 months each for Counts One through Three, and 276 months for Count Five, to be served concurrently but consecutive to the required eighty-four-month term on Count Four. Sent. Tr. 41; CR 114-030, doc. no. 110. As succinctly summarized by the Eleventh Circuit:

The PSR explained that [Petitioner] was subject to enhancement as a career offender because he had three prior crimes of violence or serious drug offense convictions. [Petitioner] objected to the enhancement. At the sentencing hearing, the probation officer identified [Petitioner's] Florida convictions for aggravated battery in 1998, armed robbery in 1999, and strong-arm robbery in 2011 [PSI ¶¶ 47, 48, 50] as qualifying offenses for the career offender enhancement. The district court overruled [Petitioner's] objection, finding that his prior convictions were sufficient to trigger the career offender enhancement. After applying the enhancement, the district court found that [Petitioner's] guidelines range was 360 months to life imprisonment and ultimately sentenced him to a total of 360 months' imprisonment.

Weaver, 760 F. App'x at 748-49.

D. Direct Appeal

Petitioner argued Hobbs Act robbery could not serve as the underlying offense for the Count Four, § 924(c) conviction, and his prior Florida strong-arm robbery and aggravated battery convictions did not qualify as predicate offenses for purposes of the U.S.S.G. § 4B1.1 career offender enhancement. Id. at 747. While the appeal was pending, the Supreme Court decided in Johnson v. United States, 576 U.S. 591, 597 (2015), the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, and the Eleventh Circuit ordered supplement briefing, in which Petitioner argued he was entitled to be resentenced because the residual clause of the career offender enhancement, like the residual clause of the ACCA, was void for vagueness. Weaver, 760 F. App'x at 749. When the Supreme Court held the Guidelines' residual clause in the career offender enhancementwas not void for vagueness, Beckles v. United States, 137 S. Ct. 886, 892 (U.S 2017), Petitioner switched tactics. He requested remand for application of the modified categorical approach to determine whether his prior Florida convictions for strong-arm robbery and aggravated battery qualified as predicate offenses. He also contended his Count Four conviction was invalid because the Hobbs Act robbery conviction did not qualify as a crime of violence under the elements...