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 293 months under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
See docs. I (indictment); 41 (jury verdict); 46
(judgement for 293 months' imprisonment); 53 (mandate
affirming judgment, filed September 7, 2006). 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 his career-felon enhancement. Doc. 62 at 4.
was found guilty by a jury of one count of possession of a
firearm by a convicted felon. Doc. 41. His Presentence
Investigative Report (PSR) deemed him an armed career
criminal, and the Court ultimately sentenced him to 293
months' imprisonment. Docs. 45 & 46; PSR at
¶¶ 22, 28, 30.
unsuccessfully appealing his conviction, United States v.
Green, 219 F.App'x 843 (11th Cir. 2006), Green filed
a motion to correct his sentence, arguing, inter
alia, that the PSR erroneously described his conviction
for two counts of robbery as separate incidents. Doc. 55 at
2. The Court denied his motion, and his appeal from that
order was dismissed for lack of prosecution. Docs. 56 &
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 argues that his convictions for robbery do not survive
Johnson as ACCA-predicates. Doc. 62-1 at 7. The
Government opposes. Doc. 67.
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. §
qualify as an ACCA "violent felony" predicate at
the time of sentencing, a prior conviction 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); United States v. Garcia-Martinez, 2017 WL
104462 at * 2 (11th Cir. Jan. 11, 2017) ("One type of
qualifying offense is a 'violent felony.'").
disputes that his ACCA-enhanced sentence survives
Johnson. Doc. 62. He contends that of his four
priors, his two convictions for robbery no longer qualify as
ACCA predicate offenses. Id. He further contends
that, regardless, they should not be counted separately, as
they actually "consisted of one simultaneous crime
occurring at the exact same time and location and not at
different times." Doc. 62-1 at 7. Green apparently
concedes that his two convictions for possession with intent
to distribute marijuana and armed robbery remain valid ACCA
predicates. Hence, only one other prior conviction need be an
ACCA predicate to deny this claim.
was indicted by the State for two counts of armed robbery and
two counts for felon-in possession of a firearm during the
commission of a crime. Doc. 67-1 at 6-7. He pled guilty to
two counts of armed robbery and one count of possession of a
firearm as a convicted felon in exchange for dismissal of the
charge of use of a firearm during commission of a crime.
Id. at 10, 12-13.
an apparent clerical error appears on the indictment. Green
was charged with two counts of "armed robbery" in
violation of "§ 16-8-4." See doc.
67-1 at 6. But O.C.G.A. § 16-8-4 criminalizes
"theft by conversion, " while O.C.G.A. §
16-8-41 criminalizes "armed robbery." Though
Johnson and its progeny demand a high level of
specificity when it comes to Shepard documents
supporting the statutory basis of conviction, it is clear
from the indictment that the jury had been directed to
determine whether Green had committed "armed
robbery" as defined by O.C.G.A. § 16-8-41, and had
in fact charged Green with armed robbery under that statute,
not § 16-8-4. See doc. 67-1 at 6
(indictment charging Green with having committed "armed
robbery" in two separate incidents on the same day, by
taking, "with intent to commit a ...