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Newell v. United States

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

March 2, 2018

RUSSELL JAY NEWELL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         On March 7, 2014, this Court sentenced Russell Jay Newell (“Newell”) to 188 months' imprisonment under the Armed Career Criminal Act (“ACCA”) after he pleaded guilty to being a felon in possession of a firearm, as well as to one count of possession of methamphetamine with intent to distribute. Newell, who is currently incarcerated at the Federal Correctional Institution Marianna, Florida, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, on April 22, 2016. (Doc. 56.)[1] The United States moved to dismiss Newell's Motion. (Doc. 58) Newell has also filed a Motion to Amend his Section 2255 Motion, (doc. 62), a Second Section 2255 Motion, (doc. 63), and a Motion to Appoint Counsel, (doc. 64). The Clerk of Court treated these pleadings as a separate Section 2255 Motion and filed them in a separate civil case.

         Through his Motion to Amend and Second Section 2255 Motion, Newell seeks to add claims that are untimely, unavailing, and barred by unnecessary delay. Newell cannot supplement his original Motion to add these futile claims. In his original Section 2255 Motion, Newell contends that the Court must resentence him following the United States Supreme Court's decision in Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (June 26, 2015). However, Johnson only invalidated the ACCA's residual clause, and Newell has failed to demonstrate that the Court relied upon that clause in any way during his sentencing proceedings. To the contrary, the record reveals that the Court properly sentenced Newell as an armed career criminal under other provisions of the ACCA due to his prior convictions for burglary and manufacturing methamphetamine.

         For these reasons, which I detail more fully below, I RECOMMEND the Court GRANT the Government's Motion to Dismiss, (doc. 58), and DENY Newell's Motion to Vacate, Set Aside, or Correct his Sentence, (doc. 56). Additionally, the Court DENIES Newell's Motion to Amend, (doc. 62), and the Court should DISMISS his Second Section 2255 Motion, (doc. 63). The Court also DENIES Newell's Motion for Appointment of Counsel. (Doc. 64.) Further, I RECOMMEND that the Court DENY Newell a Certificate of Appealability and in forma pauperis status on appeal. The Court should DIRECT the Clerk of Court to CLOSE these cases and enter the appropriate judgments of dismissal.[2]

         BACKGROUND

         I. The Armed Career Criminal Act

         The Court typically begins its discussion of a matter by detailing the factual and procedural background of the case before it. However, the facts and history of Newell's case will be better understood by first discussing the federal statutes under which Newell was prosecuted and recent cases pertinent to those laws.

         Federal law prohibits certain persons, including convicted felons, from shipping, possessing, or receiving firearms in or affecting interstate commerce. 18 U.S.C. § 922(g)(1). Ordinarily, an individual who violates this prohibition faces a statutory maximum sentence of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, a statutory provision known as the “Armed Career Criminal Act” or “ACCA” imposes a higher mandatory minimum term of imprisonment for certain offenders. Any person who violates Section 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). The ACCA provides, in relevant part:

the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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[.]

18 U.S.C. § 924(e)(2)(B).[3]

         The first prong of this definition, set forth in subsection (i), has come to be known as the “elements clause, ” while the crimes listed at the beginning of the subsection (ii), “burglary, arson, or extortion, or involves use of explosives, ” have come to be known as the “enumerated crimes clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Finally, the last portion of subsection (ii), “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is commonly referred to as the “residual clause.” Id.

         In the landmark case of Johnson, 576 U.S. at __, 135 S.Ct. at 2563, 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[.]” Thus, the Court struck down that portion of the ACCA. 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 Welch v. United States, 578 U.S. __, 136 S.Ct. 1257, 1264-65 (Apr. 18, 2016), the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review.

         While the four enumerated crimes (or the “enumerated crimes clause”) have not suffered the same fate as the residual clause, they have been the subject of numerous recent decisions of the Supreme Court and the Eleventh Circuit Court of Appeals. These decisions inform an analysis that is more complicated than would appear at first blush: whether an offender's prior conviction that bears the label of an enumerated crime actually constitutes a conviction for one of the enumerated offenses for purposes of the ACCA. Rather than merely relying on the label attached to an offender's prior conviction, federal courts must assess whether the defendant committed one of the enumerated crimes actually envisioned upon the passage of the ACCA. To conduct this inquiry, a sentencing court must assess the elements forming the basis of the offender's conviction and compare those elements to the “generic crime-i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013).

         Decisions regarding whether a burglary conviction qualifies as an ACCA predicate offense demonstrate how courts approach the enumerated crimes. Though the ACCA specifically lists “burglary” as a violent felony, merely because a state conviction is labeled a “burglary” does not automatically qualify it as a predicate offense under the ACCA. Rather, “[a]s the [ACCA] has been interpreted, a conviction for ‘generic burglary' counts as a violent felony, while a conviction for ‘non-generic burglary' does not.” United States v. Ranier, 616 F.3d 1212, 1213 (11th Cir. 2010), abrogated on other grounds by United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). A “generic” burglary is “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). A “non-generic” burglary is one that “do[es] not include all of the elements essential to generic burglaries, ” including burglaries of boats, automobiles, and other non-buildings. Ranier, 616 F.3d at 1214.

         As with all enumerated crimes, to assess whether a state conviction for burglary qualifies as a generic crime, the Court can employ two methods. First, the Court must assess the state statute under “the categorical approach.” Howard, 742 F.3d at 1345-46. If that assessment does not end the inquiry, then the Court must determine whether the statute can be assessed under the “modified categorical approach.” Id. Under the “categorical approach, ” courts “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime-i.e., the offense as commonly understood.” Descamps, 570 U.S. at 257. Under this approach, “[t]he prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. If the statute so qualifies, then this ends the inquiry: the conviction is a violent felony, and the modified categorical approach is not needed. Howard, 742 F.3d at 1345.

         However, if the burglary statute is broader than the elements of the generic crime, the statute itself does not qualify as a predicate offense under the categorical approach. Thus, the court must then determine whether it can apply the “modified categorical approach” to assess whether the defendant's conviction under the statute does qualify as a predicate offense. Id. Courts can use the modified categorical approach in those instances “when a prior conviction is for violating a so-called divisible statute.” Descamps, 570 U.S. at 257. A divisible statute is a statute which “sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to . . . determine which alternative formed the basis of the defendant's prior conviction.” Id.

         To determine which alternative of a divisible statute formed the basis for the prior conviction, a court can assess a limited class of documents including the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shephard v. United States, 544 U.S. 13, 16 (2005). These documents are commonly referred to as “Shephard documents.” If a statute is divisible, the Court can use the Shephard documents to “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps, 570 U.S. at 257. If the Shephard documents show that the defendant was found guilty under elements of a divisible statute which match elements of the generic offense instead of those which do not, the prior conviction is an ACCA predicate. Howard, 742 F.3d at 1347. In contrast, “a statute is indivisible if it contains ‘a single, indivisible set of elements.'” Id. at 1346 (quoting Descamps, 570 U.S. at 258 (defining an indivisible statute as one “not containing alternative element”)). “If a statute is indivisible, a court may not apply the modified categorical approach, and that is the end of the inquiry; the prior conviction cannot qualify as an ACCA predicate regardless of what any Shephard documents may show.” Id.

         In Howard, the Eleventh Circuit assessed whether the defendant's conviction under Alabama's third-degree burglary statute qualified as a generic burglary, and thus, a predicate violent felony under the ACCA. The Eleventh Circuit noted “[t]he elements of generic burglary under the ACCA are: (1) ‘an unlawful or unprivileged entry into, or remaining in, ' (2) ‘a building or other structure, ' (3) ‘with intent to commit a crime.'” Id. at 1348 (quoting Taylor, 495 U.S. at 598). The Eleventh Circuit first determined that the Alabama statute the defendant in Howard was convicted under did not qualify as a generic burglary under the categorical approach because the elements of the offense were not the same as, or narrower than, those of the generic offense. Id. (citing Ranier, 616 F.3d at 1215). The Howard court then assessed whether the statute was divisible, and therefore, was able to be assessed under the modified categorical approach. The Court noted that, under Descamps, the “key to determining divisibility . . . is whether the ‘statute sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile.” Id. (emphasis in original) (citation and internal quotation marks omitted). The Alabama statute contains nothing “suggest[ing] its definition of ‘building' is drafted in the alternative.” Id. “The items that follow each use of the word ‘includes' in the statute are non-exhaustive examples of items that qualify as a ‘structure' and thus count as a ‘building' under . . . § 13A-7-l(2). . . . The statutory definition of ‘building' does not say what is not included. In light of the Descamps decision, illustrative examples are not alternative elements.” Id. (citation omitted). Thus, the Eleventh Circuit determined that Alabama's third-degree burglary statute, § 13A-7-7, is a non-generic and indivisible statute, and a conviction under that statute “cannot qualify as a generic burglary under the ACCA.” Id. at 1349.

         In Mathis v. United States, 579 U.S. __, 136 S.Ct. 2243 (June 23, 2016), the Supreme Court further clarified how courts should employ the modified categorical approach. The Court held the fact that a statute contains multiple alternative means of committing the crime does not make the statute divisible, if these means are not alternative elements but rather only factual determinations about an element, and thus, unnecessary to the jury's determination of guilt for the crime. 579 U.S. at __, 136 S.Ct. at 2251-54. Put another way, the Court held that, when using the modified categorical approach to determine whether a prior conviction is a “violent felony” or “serious drug offense” under the ACCA, a court should focus on the “elements” of the statutory offense rather than on that offense's non-essential “means” of commission. Id.

         After Mathis, the Eleventh Circuit analyzed whether a conviction under Georgia's former burglary statute can constitute a predicate violent felony under the ACCA. United States v. Gundy, 842 F.3d 1156, 1166-69 (11th Cir. 2016). In Gundy, the offender had been designated as an armed career criminal due to his prior burglary convictions under the same Georgia burglary statute underlying Newell's Georgia burglary convictions, O.C.G.A. § 16-7-1(a) (2011). Id. Applying Mathis, the Eleventh Circuit determined that, though the statute was “non-generic, ”-i.e., broader than generic burglary, it was divisible. Id. The Court reasoned “the plain text of the Georgia statute has three subsets of different locational elements, stated in the alternative and in the disjunctive . . . effectively creating several different crimes.” Id. at 1167. “That the Georgia prosecutor must select and identify the locational element of the place burgled-whether the place burgled was a dwelling, building, railroad car, vehicle, or watercraft-is the hallmark of a divisible statute.” Id. Therefore, courts may continue to apply the modified categorical approach to determine whether a defendant's convictions under Georgia's prior burglary statute match the generic definition of burglary, and thus, qualify as predicate offenses under the ACCA. Id. at 1168-69.

         II. Newell's Conviction and Sentencing

         On April 2, 2013, a grand jury in this District charged Newell with three crimes: possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count One); possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) (Count Two); and possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three). (Doc. 1.)

         Newell and his attorney, Mr. Marc G. Metts, were able to negotiate a plea agreement with the Government whereby Newell agreed to plead guilty to Count One (possession of a firearm by a convicted felon) and Count 2 (possession with intent to distribute methamphetamine) in exchange for the Government moving to dismiss Count Three. (Doc. 38.) On July 8, 2013, Newell pleaded guilty to Counts One and Two. (Doc. 27.) However, at the time of his first change of plea, or Rule 11, proceeding, Newell was advised that his maximum term of imprisonment as to Count One was ten years. (Doc. 38.) The United States Probation Office subsequently learned that Newell had three qualifying predicate convictions under the ACCA that increased Newell's sentencing exposure to a mandatory minimum of fifteen years and a maximum of life imprisonment. Because Newell was not advised of this mandatory minimum at his initial plea hearing, the Government moved for a supplemental plea hearing. (Doc. 32.) On January 6, 2014, the Court held a supplemental change of plea hearing. The Court apprised Newell, among other things, of the fifteen-year mandatory minimum he faced under the ACCA, and Newell again pleaded guilty to Counts One and Two. (Docs. 34, 35.)

         Prior to Newell's sentencing hearing, United States Probation Officer Scot Riggs prepared a Presentence Investigation Report (“PSI”). Probation Officer Riggs detailed Newell's offense conduct and criminal history and calculated Newell's statutory penalties, as well as his advisory Guidelines' sentencing range. The Probation Officer described Newell's extensive list of criminal convictions. (PSI, ¶¶ 34-45.) Pertinently, Probation Officer Riggs detailed an April 14, 1997 conviction for burglary, (id. at ¶ 38); an April 13, 1998 conviction for burglary, (id. at ¶ 39); and a November 30, 2009 conviction for manufacturing methamphetamine, (id. at ¶ 42). When calculating Newell's offense level, Probation Officer Riggs asserted, “the defendant has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions (see paragraphs 38, 39, and 42). Therefore, the defendant is an armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).” (Id. at ¶ 29.) Officer Riggs concluded that Newell's statutory minimum term of imprisonment as to Count One was fifteen years and the maximum term was life. (Id. at ¶ 71.) According to the PSI, Newell's Guidelines' range for imprisonment was 188 to 235 months. (Id. at ¶ 72.)

         Newell's counsel, Mr. Metts, filed objections to the PSI. (PSI Addendum.) Mr. Metts argued that Newell's April 1997 convictions for theft by receiving stolen property and for burglary were unlawfully obtained. (Id. at p. 3.) Mr. Metts contended that Newell was a juvenile at the time of the convictions and that the appropriate pleadings for transferring Newell's cases to Superior Court from Juvenile Court were not filed. (Id.) Mr. Metts also objected to Newell's designation as an armed career criminal under the ACCA and his designation as a career offender under the Sentencing Guidelines. (Id. at pp. 1-2.)

         The Probation Officer recommended that the Court overrule Mr. Metts' objections. As to whether Newell's prior convictions were unlawfully obtained, Officer Riggs stated that Newell could not collaterally attack his state convictions in a federal sentencing proceeding. (Id. at p. 3.)

         As to Mr. Mett's career offender objection, the Probation Officer stated in pertinent part:

Each of paragraphs 38 and 39 set forth a separate conviction for the offense of burglary, which is one of the enumerated offenses in 18 U.S.C. § 924(e)(2)(B) that qualify as a “violent felony.” Further, each of these two burglary convictions meets the elements of generic burglary-unlawful, or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. See Taylor v. United States,495 U.S. 575, ...

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