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Witherspoon v. United States

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

August 11, 2017

JOHNNY LEE WITHERSPOON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

         Johnny Lee Witherspoon, (“Witherspoon”), who is currently incarcerated at the United States Penitentiary in Atlanta, Georgia, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) For the reasons which follow, I RECOMMEND this Court DENY Witherspoon's Motion and DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND that the Court DENY Witherspoon a Certificate of Appealability and DENY Witherspoon in forma pauperis status on appeal.

         BACKGROUND

         After a jury trial, Witherspoon was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and possession of a controlled substance, in violation of 21 U.S.C. § 844. J., United States v. Witherspoon, 2:00-cr-19 (S.D. Ga. Nov. 1, 2000), ECF No. 63. The Honorable Anthony Alaimo sentenced Witherspoon to 293 months' imprisonment. Id. Witherspoon's sentence was calculated based on his designation as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), due to his seven prior convictions: three for strong armed robbery and four for assault and battery of a high and aggravated nature (“ABHAN”). (Pre-Sentence Investigation Report (“PSI”), ¶¶ 45, 57-58); Sent. Hr'g Tr., United States v. Witherspoon, 2:00-cr-19 (S.D. Ga. Dec. 8, 2000), ECF No. 68, pp. 34-35. Witherspoon filed an appeal, and the Eleventh Circuit Court of Appeals affirmed his convictions and sentence. United States v. Witherspoon, 263 F.3d 170 (Table) (11th Cir. 2001). On May 2, 2016, Witherspoon filed this Section 2255 Motion, in which he asserts that he should be resentenced in light of the United States Supreme Court's decision in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (June 26, 2015). (Doc. 1.)

         DISCUSSION

         Witherspoon asserts that his sentence was improperly enhanced because the Court used several “[p]redicate offenses invalidated by the residual clause to designate him as an armed career offender.” (Doc. 1, p. 7.) Specifically, Witherspoon argues that, after the Supreme Court's decision in Johnson, his convictions for second degree burglary in South Carolina, burglary, and resisting arrest are no longer considered violent crimes. (Id.)

         The Government argues that the Supreme Court's decision in Johnson is inapplicable to Witherspoon's Motion because his status as an armed career criminal was predicated on seven prior convictions, none of which Witherspoon challenges in his Motion. (Doc. 6, p. 3.)[1]

         I. Whether Witherspoon is Entitled to Relief Pursuant to Johnson

         Under the ACCA, any person who violates 18 U.S.C. § 922(g) and has on three or more occasions been convicted for a “serious drug offense” or “violent felony” will receive a mandatory minimum sentence of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). “Serious drug offense” means “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or 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). In Johnson, the Court explained that the ACCA:

defines ‘violent felony' as follows: ‘any crime punishable by imprisonment for a term exceeding one year . . . that-‘(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.' § 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized above, have come to be known as the Act's residual clause.

__U.S. At __, 135 S.Ct. at 2555-56. The Supreme Court held that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process[.]” __ U.S. At __, 135 S.Ct. at 2563. However, the Court also emphasized that its “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.” Id.

         In this Section 2255 Motion, Witherspoon attempts to challenge the violent felony designation of his convictions for second degree burglary in South Carolina, burglary, and resisting arrest. Witherspoon argues that these three convictions were used to classify him as an armed career criminal under the ACCA's residual clause. (Doc. 1, p. 7.) However, as his PSI convictions for strong armed robbery and four prior convictions for ABHAN-not the convictions Witherspoon lists in his Motion. (PSI, ¶¶ 45, 57-58.) Furthermore, the strong armed robbery convictions qualified as violent felonies under the “elements clause” and not the residual clause of the ACCA. A violent felony under the “elements clause” of the ACCA “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). While Witherspoon's ABHAN convictions do not qualify as violent felonies, Witherspoon's three convictions for strong armed robbery do.[2]

         In South Carolina, strong armed robbery is defined as the “felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear.” State v. Rosemond, 356 S.E.2d 636, 640 (S.C. Ct. App. 2002) (emphasis removed) (quotations and citations omitted).[3] After careful analysis, the Fourth Circuit Court of Appeals determined that, “[t]here is no basis for the conclusion that South Carolina [strong armed] robbery can be accomplished with force below the physical force threshold.” United States v. Doctor, 842 F.3d 306, 312 (4th Cir. 2016). Accordingly, the Fourth Circuit held that strong armed robbery in South Carolina, “necessarily include[s] as an element the ‘use, attempted use, or threatened use of physical force against the person of another[, ]'” and, thus, qualifies as a violent felony under the elements clause of the ACCA. Id. (citing 18 U.S.C. § 924(e)(2)(B)(i)). Consequently, Witherspoon's three strong armed robbery convictions in South Carolina satisfy the requisite number of violent felonies necessary for designation as an armed career criminal under the ACCA. Furthermore, because these convictions are violent felonies according to the elements clause of the ACCA, they remain undisturbed by the Supreme Court's decision in Johnson. See Johnson, __U.S. At __, 135 S.Ct. at 2563 (“[Johnson] decision does not call into question application of the Act to . . . the remainder of the Act's definition of a violent felony.”).

         Thus, Witherspoon has the requisite qualifying predicate offenses under the ACCA. The residual clause had no bearing on his status as an armed career criminal, and thus, Johnson also has no effect on the resulting sentence. Witherspoon is not entitled to ...


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