United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Court VACATES its prior Report and Recommendation (R&R),
doc. 69, and substitutes this in its
place. Jerry Orenthal 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. 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. Doc. 62 at 4. The Court's last R&R
ruled against Green, but he filed Fed.R.Civ.P. 72(b)(2)
Objections addressed here. Doc. 72.
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) the
enumerated crimes clause, and (3) the residual clause.
Johnson held that that "residual clause"
is 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. Docs. 62 & 72. He contends that none of
his four prior convictions qualify as ACCA predicates and
that, regardless, he does not have a total of three
qualifying offenses because his two prior convictions for
robbery actually "consisted of one simultaneous crime
occurring at the exact same time and location and not at
different times." Docs. 62-1 at 7 & 72 at 9-10.
Green is correct that his conviction for possession with
intent to distribute marijuana under South Carolina law is
not a valid ACCA predicate. His three remaining convictions
for the armed robbery of Kenneth Arkwright and robbery by
intimidation of Sanchez Gardner and Steven Williams, however,
remain qualifying offenses triggering ACCA enhancement.
previously conceded that his 1992 conviction for armed
robbery was an ACCA predicate, but now objects that it no
longer qualifies. See docs. 62 & 72. His
contention is patently without merit. At the time of his
conviction, under Georgia law "[a] person commits the
offense of armed robbery when, with intent to commit theft,
he or she takes property of another from the person or the
immediate presence of another by use of an offensive weapon .
. . ." O.C.G.A. § 16-8-41; see PSR at
¶ 30 (on October 24, 1992, movant robbed Kenneth
Arkwright at gunpoint and took his car and cash). Armed
robbery clearly "has as an element the use, attempted
use, or threatened use of physical force against the person
of another" within the meaning of the ACCA. 18 U.S.C.