United States District Court, M.D. Georgia, Macon Division
Under 28 U.S.C. § 2255
LAWSON, SENIOR JUDGE
case is before the Court on a Recommendation from United
States Magistrate Judge Charles H. Weigle addressing: (1)
Petitioner's pro se motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255 (Doc. 41),
(2) the Federal Defenders of the Middle District of Georgia,
Inc.'s (“Federal Defenders”) supplemental
brief in support of petitioner's pro se §
2255 motion (Doc. 49), and (3) the United States'
response to the § 2255 Motion (Doc. 54), collectively
seeking review of Petitioner's 210-month sentence because
his armed career criminal enhanced 210-month sentence is a
per se illegal sentence that both exceeds the
10-year statutory maximum and violates due process of law.
Weigle recommends that Petitioner's § 2255 Motion be
granted, Petitioner's sentence be vacated, Petitioner be
resentenced without the armed career criminal enhancement,
and Petitioner be released from the custody of the Bureau of
Prisons. No objections to the Recommendation have been filed.
The Court has reviewed the Recommendation for clear error and
finds none. The Recommendation is accepted and adopted.
Robert Lee Stewart, was convicted upon a plea of guilty to
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1), in connection with
18 U.S.C. § 924(e). (Doc. 28). In preparing the
presentence investigation report, probation determined that
Petitioner was an armed career criminal because he had three
qualifying prior violent felonies or serious drug offenses
for ACCA purposes, one of which was Georgia terroristic
threats. The ACCA enhancement resulted in a total offense
level of 30; and, with a criminal history category of VI,
Petitioner's guideline imprisonment range was 180 to 210
months. But for the ACCA enhancement, Petitioner would have
had a total offense level of 21, yielding a guideline
imprisonment range of 77 to 96 months. Judgment was entered
on December 21, 2006, and Petitioner was committed to the
Bureau of Prisons for a term of 210 months. (Doc. 35).
Johnson v. United States, 135 S.Ct. 2551 (2015),
decided on June 26, 2015, the Supreme Court of the United
States held that the “residual clause” of the
Armed Career Criminal Act of 1984 was void for vagueness
under the due process clause of the United States
Constitution. The decision in Johnson was made
retroactively applicable to cases on collateral review in
Welch v. United States, 136 S.Ct. 1256 (Apr. 18,
2016), and the time for filing a claim under Johnson
in a 28 U.S.C. § 2255 action is subject to a 1-year
statute of limitations imposed on such claims by the
Antiterrorism and Effective Death Penalty Act. 28 U.S.C.
§ 2244. Review of Petitioner's § 2255 motions
and the docket in the above styled case establishes that
Petitioner filed a timely § 2255 motion, as amended.
November 13, 2015, Petitioner filed a motion to vacate, set
aside, or correct sentence under § 2255 arguing that, in
light of Johnson, he was entitled to relief. (Doc.
41). On March 1, 2016, the Court appointed the Federal
Defenders to review Petitioner's potential eligibility
for relief under Johnson. (Doc. 42). The Federal
Defenders supplemented Petitioner's § 2255 motion on
September 12, 2016, arguing the that in light of
Johnson, Petitioner's armed career criminal
sentence is no longer valid because Petitioner's prior
Georgia terroristic threats conviction no longer qualifies as
an ACCA predicate offense. Accordingly, Petitioner no longer
has three qualifying prior violent felonies or serious drug
offenses for ACCA purposes. Thus, Petitioner's 210-month
armed career criminal enhanced sentence is not valid and the
Court should resentence him without the ACCA enhancement.
(Doc. 49). The United States responded advising they would
not challenge Petitioner's contention that Georgia
terroristic threats is no longer a violent felony under the
ACCA post-Johnson, and also moved the Court to
resentence Petitioner without the armed career criminal
enhancement. (Doc. 54 at 5).
time of Petitioner's terroristic threats convictions, the
Georgia terroristic threats statute read as follows:
A person commits the offense of a terroristic threat when he
threatens to commit any crime of violence or to burn or
damage property with the purpose of terrorizing another or of
causing the evacuation of a building, place of assembly, or
facility of public transportation or otherwise causing
serious public inconvenience, or in reckless disregard of the
risk of causing such terror or inconvenience.
O.C.G.A. § 16-11-37(a) (1991 and 2000). The current
version of the Georgia terroristic threats statute is
materially the same as the 1991 statute.
United States v. Carson, No. 1:14-CR-00314 (N.D.Ga.
Sept. 19, 2016), the district court found that
defendant's armed career criminal enhanced sentence was
no longer valid since two of defendant's predicate
convictions were for Georgia terroristic threats. The
Northern District United States Attorney's Office
determined that a conviction for Georgia terroristic threats
is no longer a violent felony because the Georgia terroristic
threats statute includes means that do not involve the
requisite level of force and is overbroad. The United States
Attorney's Office for the Middle District of Georgia, for
the purposes of this case only, agrees with the Northern
District United States Attorney's Office determination
and will not raise a challenge to Petitioner's
contentions that Georgia terroristic threats is no longer a
“violent felony” under the ACCA.
Petitioner's terroristic threats conviction no longer
qualifies as an ACCA predicate offense, Petitioner no longer
has three qualifying prior violent felonies or serious drug
offenses for ACCA purposes. Thus, post-Johnson,
Petitioner's armed career criminal enhanced sentence is
no longer valid. Accordingly, it is ORDERED the
Petitioner's sentence be VACATED and Petitioner be
RESENTENCED without the armed career criminal enhancement.