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James v. United States

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

January 19, 2017

JOSEPH HAGAN JAMES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Guilty-plea convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), Joseph Hagan James has filed a 28 U.S.C. § 2255 motion asserting that he was improperly sentenced under the Armed Career Criminal Act (ACCA).[1] See doc. 1 (indictment); doc. 16 (plea agreement); doc. 17 (judgment for 180 months' incarceration). 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 his enhanced[2] sentence. He also contends his counsel was ineffective for failing to locate alibi witnesses, object to evidence relied upon in his conviction, or object to the enhancement of his sentence. Doc. 24.

         I. ANALYSIS

         A. Three ACCA Predicates

         The ACCA imposes an enhanced sentence upon § 922(g) felon-with-a-gun offenders who have at least three prior convictions "for a violent felony or a serious drug offense." 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).

         The 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).

          i. Drug Offenses

         James disputes that his ACCA-enhanced sentence survives Johnson, doc. 24, but the invalidation of the residual clause has no effect on an enhancement based on his "serious drug offenses." 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 . . . distributing, or possessing with intent to . . . 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).

         Movant was convicted under O.C.G.A. § 16-13-30(b) for possessing with intent to distribute and distributing cocaine, a Georgia Schedule II controlled substance. PSR at ¶¶ 24, 28-30; doc. 27 at 17-19 (indictment and guilty plea for distribution of cocaine), 34-36 (indictment and guilty plea for possession with intent to distribute cocaine); 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); id. at § 16-13-26 (list of Schedule II controlled substances).

         James' distribution of cocaine and possession with intent to distribute cocaine convictions under Georgia law match the § 924(e) definition of a "serious drug offense" because they were: (1) offenses under state law, (2) for distributing or possessing with intent to distribute a controlled substance, and (3) punishable by a maximum term of imprisonment often years or more. 18 U.S.C. § 924(e)(A)(ii); see Ga. L. 1980, p. 432, § 1; Ga. L. 1985, p. 149; Dennard v. State, 265 Ga.App. 229, 229 (2004) (cocaine qualifies as narcotic drug); see also United States v. Safeeullah, 453 F.App'x 944, 948 (11th Cir. 2012); United States v. Davies, 391 F.App'x 822, 825 (11th Cir. 2010). These offenses clearly remain qualifying "serious drug offenses" for ACCA sentence-enhancing purposes. That's two.

         ii. Burglary

         The ACCA specifically enumerates the offense of "burglary" as one of four crimes that qualify as a "violent felony." 18 U.S.C. § 924(e)(2)(B)(ii). When it enacted the ACCA, however, Congress referred only to the "generic" version of the four enumerated crimes. United States v. Gundy, 842 F.3d 1156, 1161 (2016). The generic version of burglary that Congress had in mind has these three elements: "(1) an unlawful or unprivileged entry into, or remaining in, (2) a building or other structure, (3) with intent to commit a crime therein." Id. at 1164-65. While the Georgia burglary statute incorporates each of these elements, it expands the "locational element" of generic burglary to criminalize not only the unlawful entry into "a building or other structure" but also entry into vehicles, railroad cars, watercraft, and aircraft. Id. By including these alternative locational elements, the Georgia burglary statute becomes "non-generic." Id.[3]

         Georgia's burglary statute effectively creates three distinct crimes, only one of which meets the generic definition of burglary. Gundy, 842 F.3d at 1162; id. at 1166-68 (the Georgia burglary statute has alternative locational elements, effectively creating several different crimes, that are "divisible" into the generic version (which matches the ACCA) and the non-generic versions (which do not)). Because the Georgia statute has such a divisible structure, the Court applies the "modified categorical approach" to determine whether the defendant's prior burglary convictions match (or do not match) the generic definition of burglary that Congress had in mind. Id. at 1167; see Descamps v. United States, 133 S.Ct. 2276, 2284-85 (2013). The Court relies upon a limited class of documents associated with the defendant's state conviction (e.g., the indictment, jury instructions, or plea agreement and colloquy) to determine whether the charged crime matches up with the elements of the generic crime. Id. at 1168 (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).

         The Shepard documents from James' prior burglary conviction establish that it was generic burglary, and therefore qualifies as a violent felony under the ACCA. See doc. 27 at 43-55. The state prosecutor charged, and James admitted through his guilty plea, that he had entered a specific '"building" without authority and with the intent to commit a theft therein. Doc. 27 at 46-47 (1994 indictment alleging that James, "without authority and with the intent to commit a theft therein, enter[ed] a building, to wit: Welsh Pawn Shop, located at 5521 Abercorn Street"), 48 (guilty plea). Because James entered a guilty plea admitting that he had entered a specific building without permission, and had done so with the intent to commit a theft therein, James' prior Georgia burglary conviction meets the elements of generic burglary. Gundy, 842 F.3d at 1168-69; Safeeullah, 453 F.App'x at 948. It, therefore, qualifies as a violent felony under the ACCA's enumerated crimes clause and neither Johnson nor its progeny affect his enhanced sentence. And that's three ACCA predicates.

         B. Ineffective ...


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