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Green v. United States

United States District Court, S.D. Georgia, Savannah Division

January 9, 2017

KEVIN LEROY GREEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Kevin Green was convicted by a jury of violating 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon) and given an enhanced sentence of 262 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). See docs. I[1] (indictment); 65 (jury verdict); 70 (judgement for 262 months' imprisonment); 78 (mandate affirming judgment, filed May 30, 2008). Invoking 28 U.S.C. § 2255, he seeks to exploit the new rule announced in Johnson v. United States, 576 U.S., 135 S.Ct. 2551 (2015), and made retroactive by Welch v. United States, 578 __U.S.__, 136 S.Ct. 1257 (2016), to neutralize the 262-month enhanced sentence[2] he received for possession of a firearm and ammunition as a career felon. Doc. Ill. at 4-5.

         I. BACKGROUND

         Green was found guilty by a jury of one count of possession of a firearm by a convicted felon. Doc. 65. His Presentence Investigative Report (PSR) deemed him an armed career criminal, and the Court ultimately sentenced him to 262 months' imprisonment. Docs. 29 & 33.

         After unsuccessfully appealing his conviction, United States v. Green, 275 F.App'x 898 (11th Cir. 2008), Green filed his first § 2255 motion, in which he raised a due process claim and several ineffective assistance of counsel claims. Doc. 79. The Court denied that motion on the merits. Docs. 85; 90; 91. On appeal, the Eleventh Circuit denied Green a Certificate of Appealability (COA) and leave to proceed in forma pauperis, finding "all of Green's claims were legally and factually meritless." Green v. United States, No. 10-13906E (11th Cir. Mar. 14, 2011); see doc. 108.

         The Supreme Court has since held in Johnson that the "residual clause" of the ACCA, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. 135 S.Ct. at 2557. Green sought (and ultimately received) permission from the Eleventh Circuit to file a successive § 2255 claim. See In re: Kevin Leroy Green, No. 16-12531J (June 13, 2016) (granting his successive § 2255 motion pursuant to Welch, 136 S.Ct. 1257 (holding Johnson retroactive)) (attached). He then filed this, his second § 2255 motion, arguing that his convictions for robbery by force, aggravated assault, and possession with intent to distribute marijuana no longer qualify as ACCA predicates. Doc. 111. The Government opposes. Doc. 114.

         II. ANALYSIS

         A. The Johnson Decision

         The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g), and (2) have "three prior convictions . . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). Plain vanilla, felon-in-possession convictions fetch a maximum 10 year sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement mandates a 15 year minimum (and a maximum of life). 18 U.S.C. § 924(e)(1).

         To qualify as an ACCA "violent felony, " the crime must be an offense that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) "is burglary, arson, or extortion, [or] involves the use of explosives"; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). These three definitions are known, respectively, as (1) the elements clause, (2) enumerated crimes clause, and (3) residual clause. Johnson held that that "residual clause" was unconstitutionally vague. See 135 S.Ct. 2551, 2557. It said nothing, however, about ACCA enhancements predicated on convictions for "serious drug offenses" or "violent felonies" as defined by ACCA provisions other than the residual clause. See, e.g., Johnson, 135 S.Ct. at 2563 ("Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony, " much less its definition of "serious drug offense"). After Johnson, enhancements based on those offenses remain valid. United States v. Tinker, 618 F.App'x 635, 637 (11th Cir. 2015) (convictions that qualify as violent felonies under the "elements" clause of the ACCA, rather than the "residual" clause, survive Johnson).

         B. Green's Convictions

         Green disputes that his ACCA-enhanced sentence survives Johnson. Doc. 111. He contends that of his four priors, his convictions for a 1987 aggravated assault, 2001 possession with intent to distribute more than one ounce of marijuana, and 1994 robbery by force no longer qualify as ACCA predicate offenses. Id. Green apparently concedes that his 1989 conviction for sale of a controlled substance (cocaine) remains a valid ACCA predicate. See docs. Ill. & 121.

         i. Serious Drug Offenses

         Because the Johnson decision only invalidated the residual clause of the ACCA, serious drug offenses remain ACCA predicates. A "serious drug offense" is defined as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance . . ., for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).

         After Johnson, Green's 1989 conviction for sale of cocaine under O.C.G.A. § 16-13-30(b)[3] and 2001 conviction for possession of marijuana with intent to distribute under O.C.G.A. § 16-13-30(j)[4] remain ACCA predicates. See In re Williams,826 F.3d 1351, 1356 (2016) (prior convictions for a "felony drug offense" are "not even arguably affected by Johnson's holding regarding the ACCA's ...


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