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Green v. United States

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

February 1, 2017

JERRY ORENTHAL GREEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Jerry 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[1] (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.[2] Doc. 62 at 4.

         I. BACKGROUND

         Green 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.

         After 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 & 61.

         The 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.

         II. ANALYSIS

         A. The Johnson Decision

         The 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. § 924(e)(1).

         To 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.'").

         B. ACCA Predicates

         Green 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[3] and armed robbery[4] remain valid ACCA predicates. Hence, only one other prior conviction need be an ACCA predicate to deny this claim.

         1. Green's Convictions

         Green 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.

         Interestingly, 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 ...


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