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Bennett v. United States

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

August 28, 2017

ALEX BENNETT, Movant,
v.
UNITED STATES OF AMERICA, Respondent. No. 2:12-cr-5

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Alex 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.

         BACKGROUND

         After 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). (Doc. 1.)

         DISCUSSION

         Bennett 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 contention.[1]

         Bennett 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.)

         I. Whether Bennett 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 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 residual clause.

___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 felony.” Id.

         A. RBSS Conviction

         Bennett 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).

         However, 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.)

         B. Robbery Conviction

         Although 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 ...


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