United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted as a felon-in-possession of a firearm, James Shuman
was given an enhanced sentence of 210 months'
imprisonment under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(1). See docs. I (indictment); 29
(plea agreement); 34 (judgment for 210 months'
imprisonment). 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 210-month enhanced
sentence he received for possession of a firearm as
a career felon. Docs. 38 & 42. In his 28 U.S.C. §
2255 motion, Shuman argues that his prior convictions for
serious drug offenses no longer qualify as ACCA-predicates.
Docs. 38, 40 & 42. The Government opposes. Doc. 41.
The Johnson Decision
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. §
Johnson decision held that that the "residual
clause" of the ACCA, which provided a nebulous catchall
for "violent felonies, " 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).
that Shuman's claim is not barred by his plea
agreement's collateral attack waiver, see doc.
29 at 6 & 9; United States v. Benitez-Zapata,
131 F.3d 144, 1446, or procedurally defaulted because he
failed to make it on direct appeal, see United States v.
Montano, 398 F.3d 1276, 1279-80 (11th Cir. 2005), his
claim is nonetheless meritless.
the Johnson decision only invalidated the residual
clause of the ACCA, serious drug offenses 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
residual-clause definition of a violent felony."). 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). Shuman disputes
that his ACCA-enhanced sentence survives Johnson.
Docs. 38 & 40. He contends that his three prior
convictions for the "sale or selling" of a Schedule
II controlled substance does not meet the ACCA definition of
a serious drug offense. Doc. 40 at 1 & 7.
was convicted under O.C.G.A. § 16-13-30(b) for sales of
oxycodone, a Georgia Schedule II controlled substance. PSR at
¶ 30; doc. 41-1 (superior court's final disposition
of conviction); see O.C.G.A. §§
16-13-30(b), (d) (version in effect from 1990-2012) (making
it "unlawful for any person to manufacture, deliver,
distribute, dispense, administer, sell or possess with intent
to distribute any controlled substance" and making such
a violation "with respect to a controlled substance in
Schedule I or narcotic drugs in Schedule II" punishable
"by imprisonment for not less than five years nor more
than 30 years" on the first offense); O.C.G.A §
16-13-26 (list of Schedule II controlled substances).
two convictions for sale of oxycodone under Georgia law match
the § 924(e) definition because: (1) they were state law
crimes, (2) punishable by up to thirty years at the time he
was convicted, (3) selling is a form of distributing,
(3) oxycodone is a controlled substance. United States v.
Johnson, 570 F.App'x 852, 857 (11th Cir. 2014);
United States v. Alexis, 603 F.App'x 466, 468
(6th Cir. 2015) (trafficking oxycodone is a "serious
drug offense" within the meaning of § 924(e) so
Alexis' three convictions for sales of oxycodone
triggered ACCA-enhancement). These offenses clearly remain
qualifying "serious drug offenses" for ACCA
sentence-enhancing purposes. That's two.
was also convicted of conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 801. PSR
at ¶ 28; see CR488-026 at docs. 101 & 102
(guilty plea) & 106 (judgment for 40 months'
imprisonment). Shuman concedes that this conviction sticks
post-Johnson, doc. 40 at 2; Best Canvas Prods.
& Supplies, Inc. v. PI oof, 713 F.2d 618, 621 (11th
Cir. 1983) (parties are bound by the admissions in their
pleadings), and for good reason: a federal drug conspiracy to
distribute cocaine is undoubtedly a serious drug offense
within the meaning of the ACCA. See 18 U.S.C. §
924(e)(2)(A)(i). And that's three ACCA-enhancing
thus has passed the ACCA three-conviction threshold for
enhancement as an armed career criminal. Because his prior
convictions remain predicate offenses triggering an ACCA
enhancement, see 18 U.S.C. §§ 924(e)(1)
& (2)(B), Johnson has no impact on the validity
of his sentence. Accordingly, James Shuman's § 2255
motion should be DENIED on the merits.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
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