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Dancy v. United States

United States District Court, N.D. Alabama, Western Division

June 23, 2017

DARRELL LYNN DANCY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 7:08-CR-0255-SLB-PWG

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE

         This case is presently pending before the court on petitioner Darrell Lynn Dancy's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [hereinafter Motion to Vacate]. (Doc. 1; crim. doc. 13.)[1] In response, the Government has stated that it “agrees that [Dancy] is entitled to a resentencing because his Alabama conviction for shooting a firearm into an occupied vehicle is not a ‘violent felony' under the Armed Career Criminal Act in light of United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014), Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016).”[2] (Doc. 8 at 1.)

         The law is well established that, “Confessions of error do not relieve this Court of the performance of the judicial function. Our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015), (quoting Sibron v. New York, 392 U.S. 40, 58 (1968)(quoting Young v. United States, 315 U.S. 257, 258-59 (1942)))(internal quotations and citations omitted). Based on the court independent review of Dancy's habeas claim and the sentencing record, the court finds that Dancy's habeas petition is due to be denied.

         Dancy contends that he was improperly sentenced as an armed career criminal to 180 months for possession of a firearm by a convicted felon because “his prior conviction for shooting into an occupied vehicle . . . can no longer be used to enhacne his sentence under the ACCA residual clause . . . .” (Doc. 1 at 4.) The Government states that Dancy was sentenced to fifteen years based on “three prior Alabama convictions: two marijuana-distribution offenses that were classified as serious drug offenses; and the offense of shooting into an occupied vehicle, which was classified as a violent felony.” (See doc. 8 at 2 [emphasis added].) The Government also contends that Dancy's conviction for shooting into an occupied vehicle is not a violent felony conviction and that “Dancy's sentence should be vacated for resentencing.” (Id. at 5.)

         The PSR demonstrates that, in addition to his conviction for shooting into an occupied vehicle, Dancy had three convictions for serious drug offenses, not two.

         Section 924(e)(1) states:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1)[3] of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years . . . .

18 U.S.C. § 924(e)(1)(footnote added). “A serious drug offense” includes, “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.” Id. § 924(e)(2)(A)(ii). Also, the requirement that the previous convictions were “committed on occasions different from one another” requires that the crimes of conviction be “temporally distinct” -

So long as the predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes for purposes of the ACCA. Distinctions in time and place are usually sufficient to separate criminal episodes from one another even when the gaps are small, and two offenses are considered distinct if some temporal break occurs between them.

United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013)(internal citations and quotations omitted).

         According to the PSR, Dancy had convictions for (1) unlawful distribution of marijuana in the first degree within three miles of a school on August 8, 2001; (2) unlawful distribution of controlled substance (marijuana), within three miles of a school on November 30, 2001, and (3) unlawful distribution of controlled substance (marijuana) within three miles of a school on March 8, 2002. (Doc. 10 at 9-10.) Dancy did not object to the fact of these convictions at sentencing. The unlawful distributions for which Dancy was convicted occurred on three different occasions.

         Under Alabama law, unlawful distribution of a controlled substance is a Class B felony, Ala. Code § 13A-12-211(b), for which the possible term of imprisonment is “not more than 20 years or less than 2 years, ” Ala. Code § 13A-5-6. Because he was convicted of distributing a controlled substance within three miles of a school, Dancy faced an additional term of imprisonment of 5 years. Therefore, even without consideration of his conviction for shooting into an occupied vehicle, Dancy has three qualifying prior convictions for purposes of sentencing him to a term of imprisonment for 180 months.

         The court finds that, even if the shooting into an occupied vehicle conviction is not considered, Dancy has three prior convictions for serious drug offenses and this court would be required sentence Dancy to 15 years as an Armed Career Criminal. Therefore, Dancy's ...


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