United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
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). 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 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.
Three ACCA Predicates
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).
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
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).
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).
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.
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
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
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