United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
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 (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 he received for
possession of a firearm and ammunition as a career felon.
Doc. Ill. at 4-5.
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.
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.
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.
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. §
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
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.
Serious Drug Offenses
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).
Johnson, Green's 1989 conviction for sale of
cocaine under O.C.G.A. § 16-13-30(b) and 2001
conviction for possession of marijuana with intent to
distribute under O.C.G.A. § 16-13-30(j) 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