United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
Bennett (“Alex Bennett”), who is currently
incarcerated at the Federal Correctional Complex in Yazoo
City, Mississippi, 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, the Court
DENIES Bennett's Motions to
Amend/Supplement. (Docs. 5, 8, 12.) Moreover, I
RECOMMEND this Court DENY
Bennett's Motion to Vacate, Set Aside, or Correct his
Sentence, DIRECT the Clerk of Court to
CLOSE this case, and DENY
Bennett a Certificate of Appealability and in forma
pauperis status on appeal.
entry of a guilty plea, Bennett was convicted of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). J., United States v.
Bennett, 2:12-cr-5 (S.D. Ga. Mar. 1, 2013), ECF No. 42.
The Honorable Lisa Godbey Wood sentenced Bennett to 180
months' imprisonment. Id. Bennett'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 four prior
convictions for robbery, robbery by sudden snatching
(“RBSS”), sale of cocaine, and sale of marijuana.
(Pre-Sentence Investigation Report (“PSI”),
¶¶ 22, 26-27, 30, 31, 36.) Bennett did not file an
appeal. On February 29, 2016, Bennett filed this Section 2255
Motion contending 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).
asserts that his sentence was improperly enhanced after the
Supreme Court's decision in Johnson.
Specifically, Bennett argues that his conviction for RBSS is
no longer a predicate violent felony because it falls under
the ACCA's residual clause. (Doc. 1, p. 4.) The
Government argues that, although Bennett's RBSS offense
is no longer a predicate violent felony after
Johnson, Bennett still qualifies as an armed career
criminal based on his three separate convictions for robbery
and serious drug offenses. (Doc. 3, p. 3.) The Government
provided Shepard documents to support this
then filed a Motion to Amend/Supplement his Section 2255
Motion to include arguments that his drug convictions are not
predicate ACCA offenses and that his attorney rendered
ineffective assistance of counsel for not investigating those
drug convictions. (Doc. 5.) The Government filed a Response,
urging the Court to deny Bennett's Motions due to the
untimeliness of his claims. (Doc. 10.)
Whether Bennett is Entitled to Relief Pursuant to
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 Supreme 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
___U.S. at___, 135 S.Ct. at 2555-56. The 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
argues that, because his RBSS conviction was considered a
violent felony under the ACCA's now-defunct residual
clause, the Government can no longer use this conviction to
categorize him as an armed career criminal. (Doc. 1, p. 4.)
The Government concedes that Bennett's RBSS conviction no
longer qualifies as an ACCA predicate violent felony after
the Supreme Court's decision in Johnson. (Doc.
3, p. 3); see also United States v. Johnson, 572
Fed.Appx. 833, 835 (11th Cir. 2014) (“[W]e have held
that ‘robbery by sudden snatching' is a
‘violent felony' under the residual clause of the
ACCA.”) (citing United States v. Welch, 683
F.3d 1304, 1312-13 (11th Cir. 2012).
even without the RBSS conviction, Bennett still qualifies as
an armed career criminal, and his sentence enhancement is
still applicable. As his PSI makes clear, the Court also
considered Bennett's convictions for robbery and sales of
marijuana and cocaine in determining his armed career
criminal status. (PSI, ¶¶ 22, 27, 31.)
Bennett challenges his RBSS conviction throughout the bulk of
his Section 2255 Motion, he briefly argues that his
“robbery by force [conviction] falls in the similar
kind of definition of the residual clause[.]” (Doc. 1,
p. 18.) However, Bennett's robbery conviction
categorically qualifies as a violent felony under the
“elements clause” of the ACCA. A violent felony
under subsection (i), or the “elements clause, ”
of the ACCA “has as an ...